Tripp Wire
How informers ended up behind every office potted plant
by Walter Olson
Reason Magazine, 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 resume
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 managers
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
enlist 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 with 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 25 or 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
"whistleblowing" 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 resumes 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
expose, 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 require 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 farther 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 resume 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 resume
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 more content with a
low 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' resumes are matched, their
demeanors may not be: Aside from personal differences,
the one who's assigned to defend a more extensively false
resume 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 groups -- 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 remain objective. 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.
* * *
Contributing editor Walter Olson (hambo@eci.com) is the
author of The Excuse Factory (Free Press) and a senior
fellow at the Manhattan Institute.
Reason Magazine is a monthly magazine of "free minds and
free markets." Check out its Web site at
http://www.reason.com.
The EEOC Web site is at http://www.eeoc.gov; the site
includes one document about the legal permissiblity of
using testers, http://www.eeoc.gov/docs/testers.txt.
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