How informers ended up behind every office potted plant
By Walter Olson
Reason, April 1998
Suppose Hillary Clinton's theory is right, and Zippergate really was
a conspiracy to entrap and destroy her husband. Suppose some ax-grinding
private group, with the intent of "testing" the president's suspected fondness
for skirt chasing on the job, had sent in an attractive young woman to
apply for a White House internship. Suppose they artfully devised a phony
résumé calculated to get her in to see him, complete with
schools she hadn't attended and references from fictitious mentors. Suppose
she told lie after lie at the interview to keep the conversation going
and to see whether he'd show weakness. And then suppose--as a crowning
touch--that the "tester" or her sponsors turned out to have a huge financial
stake in the outcome, standing to cash in richly if a charge against him
could be made to stick, and not otherwise.
Do you think Clinton loyalists would cry entrapment? Do you think they'd
challenge the credibility of an accuser who'd shown her own willingness
to lie boldly and repeatedly?
And yet the Clinton administration has lately offered its blessing to
exactly this sort of bounty-hunting entrapment. The only difference: Such
tactics are to be deployed against America's private employers rather than
its own chief executive. In early December, just a few weeks before the
Monica Lewinsky tapes hit the papers, the Clinton administration announced
to loud applause from civil rights groups that it was going to throw the
federal government's clout behind attempts to catch employers in purported
acts of discrimination, including sexual harassment, by using so-called
testers--paid informers who pose as job applicants.
How "testing" works is seen in a 1993 case from the president's own
backyard. The head of a Washington, D.C., employment agency had been rumored
to be making passes at female job applicants. To investigate, two women
posed as job seekers and emerged with the same story: Yes, he'd gotten
fresh with them. A court awarded the two $79,000 in compensation for the
trauma of the experience--and to encourage more testing efforts.
Until now, the federal Equal Employment Opportunity Commission entertained
serious enough misgivings about such practices that it declined to assign
any resources to promote their use. That changed in December, when the
Clinton EEOC announced it had signed contracts with private groups in Washington
and Chicago to support exploratory tester programs. To underline the Clintonites'
enthusiasm for the practice, in January Vice President Gore called for
a big expansion of the Department of Housing and Urban Development's use
of undercover testers to unearth alleged bias among landlords and real
estate agents. If the Clinton administration wonders who's promoted this
new idea of stocking everyone's office with an informer behind every potted
plant, it should look in the mirror.
According to my 11th edition Britannica, the common informers or delators
of ancient Rome were a class of private citizens who specialized in bringing
accusations against others: "They were drawn from all classes of society--patricians,
knights, freedmen, slaves, philosophers, literary men, and, above all,
lawyers." The right to file charges against a fellow citizen was not in
itself new, but took on a new character when the state began awarding the
delator a share of the property of the accused; a successful accusation
of treason, for example, carried as a prize a quarter of the victim's estate.
As the incentives made themselves felt, Rome soon began to see a steady
stream of accusations against the wealthy and unpopular. "Pliny and Martial
mention instances of enormous fortunes amassed by those who carried on
this hateful calling," notes the encyclopedia. The memory of such abuses
contributed to what Gibbon called "the ignominy which, in every age and
country, has attended the character of an informer."
Well, maybe not every age and country. Some time around 1970 the American
legal system began to grow quite enamored of the idea of bounty hunting.
New "citizen suit" statutes allowed any private complainant to charge private
parties with infractions of various laws, especially in the environmental
realm. Some of these laws rely on richly calculated legal-fee-award provisions
to encourage informing, but others provide out-and-out bounties, which
under our contingency-fee system can be shared with lawyers. In 1986 Congress
greatly expanded a Civil War-era statute called the False Claims Act to
provide that private parties who charge financial irregularities at government
contractors can claim up to 30 percent of the moneys recovered. False Claims
Act complaints soon spread from defense contracting to hospitals' and universities'
billing on Medicare and research grants. Our legal culture, with places
like the Clintons' Yale Law School in the lead, had begun to view "whistle
blowing" in a new and favorable light. "We need to begin to turn tattletales
into moral heroes," a professor of business ethics told Management Review.
"Testing" soon became a popular way for housing-rights groups to generate
complaints: Pairs of confederates would apply for a vacant apartment, and
if the white applicant was treated better than the black, it was off to
court. In housing "tests," to be sure, it may not be necessary to falsify
very much personal data. By contrast, employment testers must typically
be fitted out with, and be ready to keep straight at the interview, an
extensive skein of falsification. "Every place we went our résumés
were changed to suit the job," recalled an agent.
Undercover surveillance, dubious enough when done as a journalistic
tactic, as in ABC's ill-starred Food Lion exposé, raises many more
problems when proffered as a method of proving guilt in court. To managers
themselves, if not to legal authorities, it's obvious that two equally
plausible job applicants could run into different treatment on consecutive
days for a host of reasons other than bias: A different manager might be
on duty; some deadline or sudden crisis may demand full attention and require
giving outsiders short shrift.
Testing sponsors like to pretend that they're somehow engaged in some
kind of rigorous or scientific "study" proving discrimination. Yet actual
experience shows that the results--typically a data set with two points,
one each from Applicant A and Applicant B--are not always replicable. Miami's
local NAACP thought it had found discrimination at three department stores,
but a second round of testing found nothing amiss at two of the three.
In other cases testing has produced results in the "wrong" direction, where
the minority applicant advances further in the process. But a testing operation
can simply discard these anomalous results, collect cases with the opposite
fact patterns, and head for court.
All this assumes that testing sponsors have genuinely fitted out applicants
with unquestionably equivalent credentials (or, as is commonly done to
strengthen the case, slightly "better" ones for the minority applicant).
Yet in practice there's often room for dispute on this score. In another
prominent case from Washington, D.C., testers said they'd made the black
applicant's résumé slightly better than the white's. That
was a matter of opinion: They'd assigned him a diploma from the New York
City public schools, while the white applicant had supposedly graduated
from a public school in suburban Boston.
Similarly, sponsors' notions of what constitutes equal-or-better job
experience aren't always the same as employers'. In one case a minority
applicant's résumé portrayed him as having earned more in
previous jobs; the manager said in fact this had counted as a point in
favor of the other applicant, who might be content with a lower salary.
In a case against Brooks Brothers, the white tester had posed as a video
store supervisor and the black as a clothing store sales clerk; the store
later said it felt experience as a supervisor was more valuable for the
job in question than experience in the same area of retailing.
Even if applicants' résumés are matched, their demeanors
may not be: Aside from personal differences, the one who's assigned to
defend a more extensively false résumé might, for example,
behave more defensively or argumentatively. Social scientist Peter Skerry
watched videotapes of the applicants in a famous Urban Institute tester
survey and found them "quite obviously not comparable," he later wrote
in a Wall Street Journal critique. "The Anglo kids were much more self-assured,
addressed the camera directly, didn't lower their heads, whereas the Hispanic
kids tended to do that, and they were much more ill at ease." In addition,
Skerry said, while the two groups had nominally been matched as to college
attainments, the Anglos had come from more elite schools. Presumably "successful"
individual testers and group -- the ones who succeed in provoking the appearance
of misconduct -- are more apt to generate repeat assignments than those
who come back empty-handed.
To make matters worse, testers -- like Linda Tripp -- may decide
to wear a wire. "In most [housing] testing situations, the testers carry
tape recorders," Michigan lawyer Kevin McCarthy wrote in a 1991 roundup
in the National Law Journal. "It is anticipated that the same basic procedures
will be used in employment situations." It's not clear the EEOC will go
that far, but some private testers certainly feel entitled to. And nothing
will then stop them from patching together selected tidbits to take to
court and feed to the press -- recalling the Texaco
case, where lawyers reaped tens of millions after publicizing inflammatory
transcripts that later turned out to be false.
The courts, too, have lost much of their old distrust of claims trumped
up by informers. Not only do most of them agree to confer "standing" on
testers, but some award hefty damages for testers to pocket personally
-- destroying any possible hope that their testimony can be trusted to
In our zeal for encouraging speculative claims, in fact, we actually
manage to outdo the Roman emperors. The practice of the common informer,
reports the Britannica, was "not without its dangers. If the delator lost
his case or refused to carry it through, he was liable to the same penalties
as the accused." But since our legal system sedulously resists a loser-pays
principle for accusers, we avoid even this much of a prospective downside.
In his classic novel of Imperial Rome, I, Claudius, Robert Graves tells
how the Emperor Caligula "began using informers to convict rich men of
real or imaginary crimes, in order to get their estates....He celebrated
his first batch of convictions with a particularly splendid wild-beast
hunt. But the crowd was in an ugly temper. They booed and [a cry soon went
up]: 'Give up the informers! Give up the informers!' "
When the emperor asks the relatively popular Claudius to quiet the mob,
the latter addresses them as follows: "The best policy was to do nothing
which might give informers any ground for action. If everyone, I said,
lived a life of the strictest virtue, the cursed breed would die out for
want of nourishment, like mice in a miser's kitchen. You would never believe
what a tempest of laughter this sally provoked. The simpler and sillier
the joke, the better a big crowd likes it."
"If there's not discrimination, there shouldn't be any concern," New
York employment lawyer Robert Lanza assured USA Today regarding the new
testing initiative. Claudius, thy spirit lives on.
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