EVIDENTIARY STANDARDS IN EMPLOYMENT DISCRIMINATION: A VIEW TOWARD THE FUTURE

This article reviews recent changes in evidentiary standards in employment discrimination litigation as they relate to disparate impact theory. Precedents established in Watson v. Fort Worth Bank and Wards Cove Packing Co. v. Atonio , altering the employee's and the employer's responsibilities in discrimination cases are analyzed. In reaction to these and other Supreme Court rulings, Congress introduced a civil rights bill which was eventually signed into law after numerous compromises. The debate surrounding the development of the 1991 Civil Rights Act and the legislation itself are reviewed. With respect to disparate impact, the Act addresses the criteria for establishing a prima facie case (causation), burden of proof standards, and a definition of business necessity. However, a close reading of the Act and a review of recent disparate impact cases suggest the causation and business necessity issues are not fully resolved. Potential implications for managing personnel decision systems in this new environment are discussed.     

Contemporary Title VII Enforcement: The Song Remains the Same?

Equal employment opportunity (EEO) law is constantly evolving and many changes can happen in 50 years. Title VII of the Civil Rights Act of 1964 has always been the most comprehensive law related to workplace discrimination. Like all laws, Title VII has matured over time, including amendments by Congress, refinement by the courts, and creation and updates of regulations by enforcement agencies. However, there are several controversies that have endured during this maturation process, and this article focuses on four of them: (1) adverse impact theory, (2) reverse discrimination, (3) sexual harassment, and (4) retaliation. There are common issues across these controversies. However, for purposes of exposition, each one is treated as a separate entity. For each of the four controversies, we review historical context, recommend compliance strategies and share best EEO practice recommendations for practitioners and employers.     

Editorial: Three Perspectives of Employment Discrimination 50 Years After the Civil Rights Act—A Promise Fulfilled?

Purpose

In recognition of the 50th anniversary of the Civil Rights Act of 1964, this paper reviews contradictory perspectives of the status of employment discrimination.

Design/Methodology/Approach

Arguments are derived from psychology, management, law, and political science to contrast perspectives that civil rights legislation has (a) done its job, (b) gone too far, and (c) not gone far enough.

Findings

We determine that disagreement is inevitable and that no unified conclusion can be drawn. Recognition of the viewpoints embedded in opposing perspectives, however, offers direction for the future of organizational science and practice.

Implications

Consideration of these disparate views of civil rights legislation enables thoughtful reflection on the past, present, and future of civil rights legislation.

Originality/Value

This paper offers a variety of lenses through which to consider employment discrimination in the organizational sciences and underscores the value of the papers collected in the special issue.     

The Origins and Legacy of the Civil Rights Act of 1964

Purpose

This paper provides a historical review of the origins and legacy of the 1964 Civil Rights Act through the lens of the African American Civil Rights and the Women’s Rights Movements.

Design/Methodology/Approach

The historical narrative was developed using psychological, historical, and legal source material.

Findings

While the Civil Rights Act did not immediately change the landscape of equality in the American workplace, it signaled a fundamental shift in the treatment of racial and gender diversity. In concert with other social, legal, and political shifts, it paved the way for progress on issues like affirmative action, pregnancy discrimination, and sexual harassment.

Implications

Without an understanding of the historical development and consequences of the Civil Rights Act, it is easy to lose sight of how the act has shaped the understanding of equality in the American workforce. Further, the way in which rights movements evolved alongside each other illuminates a need to focus not only on equality between majority and minority groups but also on issues of equality among minority groups.

Originality/Value

Previous reviews of the Civil Rights Act and rights movements tend to focus narrowly on one issue or group, and approach that concern from a single academic discipline. In contrast, we provide a review of the roots and consequences of the Civil Rights Act based on the developments of two rights movements, and draw from sources in psychology, history, political science, and legal perspectives to provide a broader picture of this landmark legislation.     

When Traits Are Behaviors: The Relationship Between Behavioral Responses and Trait-Based Overall Assessment Center Ratings

Federal and state court cases were reviewed to determine the legality of banding. Banding specifies a range of test scores that are considered equivalent for selection purposes, which allows the use of other job-related or diversity factors to select among candidates within a particular band. Although the Supreme Court has not ruled on the legality of banding, state, district, and appellate courts have upheld different types of banding (e.g., fixed, sliding, random) under the 14th Amendment, Title VII of the Civil Rights Act of 1964, and the Civil Rights Act of 1991. However, the case review indicated that banding is less likely to survive legal scrutiny when minority preference is the only factor used to choose among candidates within a band. Implications for organizations using or considering banding are discussed.     

Review of Research on Age Discrimination in the Employment Interview

This paper reviews the research literature on age discrimination in the employment interview and related contexts. Twenty one studies were identified which explored whether age discrimination occurs within the context of the employment interview since the Age Discrimination in Employment Act was put into law. Sixteen studies were conducted in laboratory settings. It was concluded that evidence of age discrimination in the employment interview is commonly observed in laboratory studies which do not assess the influence of other job-relevant characteristics. Laboratory studies may create too much artificiality, where the impact of qualifications is artificially minimized and the impact of irrelevant factors like age are maximized. Only 5 of the 21 studies were conducted in the field, but they found far less consequential age discrimination in the employment interview.     

Compensation for pain,suffering, and other psychological injuries: The of Daubert on employment discrimination claims

The Daubert standard for admitting expert testimony places increased emphasis on the scientific basis for professional opinions. This article identifies factors mental health professionals should consider to meet that standard and Federal Rule of Evidence 702 when evaluating claims of psychological injuries as authorized by the Civil Rights Act of 1991, in cases of sexual harassment, retaliation, and other forms of employment discrimination. First, the contribution experts can make by presenting a framework to assess and understand the nature, duration, intensity and severity of emotional injuries is outlined. Specialized knowledge helpful in assessing these claims is reviewed in light of the scientific literature on stressors, anxiety disorders, somatoform disorders, depression, posttraumatic stress disorder, and ways in which related symptoms manifest regarding events in the workplace or following loss of employment. Second, the role of qualified experts to facilitate determinations of causation is discussed, highlighting factors that bear on preexisting harm, intervening injurious events, the exclusion of alternate sources of mental distress, emotional harm and humiliation, and mitigation of damages.     

Unintended Consequences of EEO Enforcement Policies: Being Big is Worse than Being Bad

In enforcing the Civil Rights Acts of 1964 and 1991, it is often critical to determine whether a challenged procedure has systematic adverse impact. The use of statistical significance tests to make this determination has the perverse consequence that the size of an organization or an applicant pool has more impact on determining adverse impact than the extent to which procedures actually discriminate. That is, it is worse to be big than to be bad. We use Monte Carlo studies to illustrate this unforeseen consequence of current enforcement policies and note that a broader definition of adverse impact is clearly warranted.     

The Failure of the Bona Fide Occupational Qualification in Cross‐Gender Prison Guard Cases: A Problem beyond Equal Employment Opportunity

Knowing the theory of gender that a court is using to understand and assess the issues in a case is vital to ensuring that women are afforded their full rights under the law. Unfortunately, courts often do not explicitly state what understanding of gender is informing their decisions. An exception is found in employment law: specifically, the bona fide occupational qualification (BFOQ) exception to Title VII of the Civil Rights Act, which allows employers to engage in sex‐based discrimination in those instances in which the sex of the employee is a reasonably necessary qualification for the job. In these cases, because the court must analyze how “manness” or “womanness” impacts one's qualification to hold certain kinds of employment, the court must articulate its understanding of gender. This paper examines two BFOQ cases in the cross‐gender prison guard context, those cases in which an individual of one sex seeks to guard inmates of the opposite sex. In these cases the courts created a theory of gender that posits men and women as different in kind. The theory developed in this line of cases is an attack on Title VII protections and a potential barrier to women's equality under the law.     

The Historical and Political Context of the Civil Rights of Persons With Disabilities: A Multicultural Perspective for Counselors

The authors provide a useful historical link between the civil rights movement in the 1960s and the disability rights movement. The origins of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), and the Rehabilitation Act of 1973 are discussed from the sociopolitical context at the time of their passage. Important links are drawn between these laws, affirmative action, cultural diversity, and multiculturalism. The authors address the role of the counselor with respect to becoming advocates for persons with disabilities in the face of injustice.     

The Role of Organizational Leaders in Sexual Orientation Equality at Organizational and Federal Levels

Purpose

This article expands the discourse of the impact of the passage of the Civil Rights Act (CRA) of 1964 to sexual orientation minorities (SOM).

Design/Methodology/Approach

We first discuss the challenges faced by SOM in the workplace. We then present a model adapted from Edelman’s “Handbook of employment discrimination research (pp. 337–352). Dordrecht, The Netherlands: Springer (2005)” theory of endogeneity of law to discuss the impact that such leaders and their supportive organizational SOM policies can have on the passage of nationwide SOM legislation. Finally, we discuss how organizational leaders’ beliefs and actions can play a major role in affecting organizational SOM policies.

Findings

We argue that the presence of organizational protective policies can facilitate the passage of federal SOM legislation by establishing and legitimizing social norms. We also highlight how beliefs about religion, morality, controllability, and occupational stereotypes contribute to prejudice and lack of support for SOM-protective organizational policies.

Implications

We discuss the importance that organizational SOM policies have on larger societal legislative issues, and outline how specific individual-level beliefs can impact organizational-level support for SOM.

Originality/Value

We take a novel approach by focusing on what organizational leaders can do to enact SOM policies that may further influence protective laws. We also draw upon neo-institutional theory to show specifically how organizations can affect legislation; a topic often ignored in organizational psychology.     

Equal Opportunity Programs: A Case for Counseling

The Civil Rights Act of 1964, under Title VI, requires that institutions of higher education submit enrollment figures according to ethnic breakdown for federal monies to be allocated. Such requirements are indicative of efforts to diversify student populations. The Higher Education Act of 1965 also incorporates a number of related programs—Supplemental Opportunity Grants, College Work Study, Talent Search, Upward-Bound—which are designed to provide direct or indirect assistance to disadvantaged students. (Gordon, 1975)     

Chasing the Title VII Holy Grail: The Pitfalls of Guaranteeing Adverse Impact Elimination

Purpose

Title VII of the Civil Rights Act of 1964 provided industrial/organizational (I/O) psychologists with a unique role as professional test developers and consultants involved in assisting organizations in establishing the job-relatedness/validity defense to charges of discrimination, specifically charges based on an adverse or disparate impact theory. However, these activities have transmogrified into the fairly common occurrence of public municipalities and organizations demanding the reduction or absence of adverse impact as part of the scope of work or contracts and for practitioners and consultants to guarantee adverse impact reduction or elimination a priori. Plaintiffs and their experts also routinely argue that the observed adverse impact could have been allayed or eliminated if the defendant had only just used alternative testing methods. This then begs the following question: “Are there well established techniques and procedures that can reduce, minimize, or eliminate adverse impact in a predictable, generalizable, and replicable fashion in the same manner that we might guarantee validity?” The present paper seeks to answer this question.

Approach and Findings

With the preceding as a backdrop, the present paper identifies and discusses four overlooked critical attributes of adverse impact that collectively and in conjunction work against and obviate adverse impact reduction and elimination guarantees.

Conclusions and Implications

We conclude that the search for guaranteed adverse impact reduction or elimination is a “Holy Grail” and that we should avoid predictions and guarantees regarding adverse impact elimination in specific situations, including those based on the inclusion of “alternative” selection devices. However, in the context of civil rights legislation, and the intersection of I/O psychologists with said legislation, what we can guarantee as a science and profession are sound and valid tests and assessment devices that can be defended accordingly should the use of said tests and devices be challenged.     

Genetic Discrimination and the Employment Provisions of the Americans with Disabilities Act: Emerging Legal,Empirical, and Policy Implications

The Americans with Disabilities Act of 1990 (ADA) is the most comprehensive federal civil rights law addressing employment discrimination against potentially millions of Americans. The Human Genome Project (HGP) is a federally funded research effort that seeks to map and sequence every human gene. This article is meant to contribute to the emerging dialogue on the interplay between the HGP and the employment provisions of the ADA, set forth in Title I of the act. The relevance of the HGP to emerging legal questions, including those arising under Title I and recent EEOC guidelines, is described. Thereafter, empirical issues are discussed, and directions for future investigation of genetic discrimination under the ADA are explored.     

Scientific Research and Human Rights: A Response to Kitcher on the Limitations of Inquiry

In his recent work exploring the role of science in democratic societies Kitcher (Science in a democratic society. Prometheus Books, New York, 2011) claims that scientists ought to have a prominent role in setting the agenda for and limits to research. Against the backdrop of the claim that the proper limits of scientific inquiry is John Stuart Mill’s Harm Principle (Kitcher in Science, truth, and democracy. Oxford University Press, New York, 2001), he identifies the limits of inquiry as the point where the outcomes of research could cause harm to already vulnerable populations. Nonetheless, Kitcher argues against explicit limitations on unscrupulous research on the grounds that restrictions would exacerbate underlying social problems. I show that Kitcher’s argument in favor of dissuading inquiry through conventional standards is problematic and falls prey to the same critique he offers in opposition to official bans. I expand the conversation of limiting scientific research by recognizing that the actions that count as ‘science’ are located in the space between ‘thinking’ and ‘doing’. In this space, we often attempt to balance freedom of research, as scientific speech, against the disparate impact citizens might experience in light of such research. I end by exploring if such disparate impact justifies limiting research, within the context of the United States, under Title VII of the Civil Rights Act of 1964 or under international human rights standards more generally.     

NEW DEVELOPMENTS IN THE USE OF MEASURES OF HONESTY INTEGRITY, CONSCIENTIOUSNESS, DEPENDABILITY TRUSTWORTHINESS, AND RELIABILITY FOR PERSONNEL SELECTION

This paper is the fourth in a series of reviews of the use of measures of honesty, integrity, conscientiousness, dependability, trustworthiness, and reliability for personnel selection (see Sackett & Decker, 1979; Sackett & Harris, 1984; Sackett, Burris, & Callahan, 1989). New developments reviewed include an examination of professional and congressional inquiry into this area of testing, rapid growth of the validity data base, new insight into similarities and differences between different tests, and links to the Big Five personality dimensions. Inquiries into relationships with other constructs, including cognitive ability, moral reasoning, and social desirability are reviewed, as are applicant reactions to these tests. The effects of the Civil Rights Act of 1991 and the Americans with Disabilities Act are considered.     

SEXUAL HARASSMENT: CRITICAL REVIEW OF LEGAL CASES WITH GENERAL PRINCIPLES AND PREVENTIVE MEASURES*

Fifty-two court cases were reviewed to determine the standards set by the courts for establishing a claim of sexual harassment under Title VII of the Civil Rights Act of 1964. Twenty-nine are discussed. Three major issues were examined in Part I of the review: (1) the gender-based nature of sexual harassment at work, (2) the direct and indirect employment-related consequences that result from the harassment, and (3) the extent of employer liability for the sexually harassing acts of their employees. Part II discussed the general principles that were distilled from the court cases and examined future trends and preventive measures, as well as the role of professionals in future research. A plan of action to combat sexual harassment at the workplace consistent with court interpretations was presented.     

The who and when of internal gender discrimination claims: An interactional model

Although gender discrimination has been illegal in organizations since the passage of the Civil Right Act of 1964, individuals remain hesitant to claim internally by making members of their employing organization aware of gender discrimination. Yet surprisingly little research has examined the individual difference and contextual antecedents to internal discrimination claims. We advance an interactional model and hypothesize that gender identity (GI) and climate for diversity (CFD) will interact to predict internal claims of gender discrimination. Consistent with theory, laboratory and field studies demonstrate that strong GI individuals are more likely to make internal claims in organizations that value inclusion (i.e., positive CFD) than in organizations where discrimination is pervasive (i.e., negative CFD). In contrast to strong GI individuals, however, weak GI individuals are more likely to claim in a negative CFD than in a positive CFD. Implications for both individuals and organizations are discussed.     

Federal civil rights policy and mental health treatment access for persons with limited English proficiency

As noted in the supplement to the U.S. Surgeon General's report on mental health (U.S. Department of Health and Human Services, 2001), overcoming language access barriers associated with limited English proficiency (LEP) should help to eliminate racial and ethnic disparities in mental health care access and quality. Federal policy requires remedial action to overcome language barriers: Under Title VI of the Civil Rights Act of 1964, Medicaid and other federally funded programs must provide assistance to LEP persons. Some state-level public and mental health authorities have responded by instituting "threshold language" policies. The history and terms of federal civil rights policy, and of threshold-language-policy-inspired initiatives, should be understood by everyone concerned with overcoming ethnic disparities in mental health services use. Concerned parties should promote implementation of required measures for language assistance and help to evaluate their implementation and effectiveness.     

LEGAL CONCERNS IN THE USE OF WEIGHTED APPLICATIONS1

The use of the standard weighted application procedure relies on strictly empirically derived keys for validity. While weighted applications are generally valid in terms of the correlation between score on the application and position on the criterion, the empirical scheme may weight items that can not be shown to be relevant to the job for which they predict. To the extent that employment decisions are based on non-job-relevant weighted applications, such decisions may be contrary to the letter or the spirit of the Civil Rights Act. Alternative methods incorporating job relevance into the weighting procedure via job analysis inject the “hand of reason” into the process. Such rational-empirical approaches ensure job-relatedness as well as validity.