The traditional face-to-face selection interview (FTFI)
is vulnerable to legal challenges because, inter alia, it frequently:
(1) does not significantly enhance the predictability
of vocational or scholastic performance beyond what can
be achieved with more objective1
criteria2; (2) does not
measure bona fide occupational (or educational) qualifications
(BFOQs)3; (3) lacks business necessity4; and (4) causes discriminatorily
exclusionary effects among5 and within6minority groups.
Consequently, FTFIs should be conducted only if productivity-related
and validated. In addition, accommodations to the
FTFI should be readily attainable, especially by the psychiatrically
Traditionally, the FTFI is the final stage of selection. Interviewees
are advised to arrive punctually, fastidiously spruced and sartorially
impeccable. Since the strategy is to project one's most favorable
image, etiquette is also crucial, including salutations, gesticulations,
posturing, and-especially-punctilious handshaking
style. During the interlocution, all questions, however probing
or offensive, must be answered straightforwardly and unabashedly.
Paradoxically, the candidate also must simultaneously manifest
both originality and conformity to selectors'7 predispositions.
Any deviation from these meticulous expectations is likely to
doom the applicant's prospects, notwithstanding superlativeness
on all other selection criteria. If that were not enough, physical
attractiveness alone may be decisive, since interviewing often
degenerates into a tacit beauty contest.
This FTFI paradigm invites discrimination imputable to factors
unrelated to occupational or academic performance8, including race,
gender, ethnicity, age, physical or psychological disability,
attractiveness9, stature10, somatotype11, personality12, and even histrionic
talent.13 These glaring correlatives of the FTFI not only jeopardize
equal opportunity rights, but also propagate suboptimal
Despite its subjectivity14 and conjectural utility, the FTFI
remains ubiquitous for at least four reasons: (1) Tradition. However,
most consuetudinary practices, despite their momentum, are ultimately
superannuated.15 (2) Expedience. Likewise, many self-aggrandizing
conveniences-such as debarring African-Americans and females16
from the boardroom-eventually pass into obsolescence. (3)
Synergy with at-will employment. Errant personnel decisions
entail less risk in an at-will arena than in a labor market abiding
by a standard of good faith or fairness. Employers adhering
to at-will policies are prone to loathe FTFI delimitation, since
it may be cheaper to have a high employee turnover rate than to
invest in unbiased selection procedures. (4) Superficiality.
Many employers imprudently fancy the FTFI precisely because it
is ineludibly pervaded by extrinsic, arbitrary considerations
such as complexion, countenance, semblance, and persona.
Complementing the above factors are proponents' expostulations
that the FTFI is necessary: (1) for determining whether the applicant
has requisite communicative or social skills; (2) to obtain supplementary
information; (3) to appraise candidates' veracity; (4) for selection
among equally qualified aspirants; or (5) to prognosticate whether
there will be companionability between the applicant and prospective
supervisors or co-workers. Although these arguments are sometimes
legitimate, they are inapposite in the majority of selection situations.
Interpersonal skill. The concerns of Argument 1 can generally
be addressed by combining personal or business references17 with
telephonic or blinded interviewing.18 Most vocational
and educational positions cannot legitimately justify more than
minimal communicational and social skill prerequisites. For confirmation,
one has only to behold the outstanding individuals with handicap-limited
oral or social abilities in virtually every field, including those
requiring extensive public contact. There are countless examples
of productive professionals whose speech or body language is affected
by blindness, hearing impairment, stuttering, severe physical
disability, or even developmental disability. Be that as it may,
such individuals tend to be excluded-especially from "high-profile"
positions-by the FTFI.
As a result, the FTFI should be limited to those few endeavors-such
as the dramatic arts, high-level management, and public relations-where
extraordinary interpersonal or elocutionary ability is a BFOQ.19
Admittedly, elimination of the FTFI restricts recruiters' inspection
of cleanliness and other grooming behavior, as well as eye contact,
sincerity of expression, and other cosmetic or vicissitudinary
phenomena. Nonetheless, for all but a handful of positions, the
probity of such information is likely to be exceeded by the prejudicial
impact of conjointly gleaned sensual impressions.20
Supplemental Data. Argument 2 is credible only when it
is impractical to obtain vital information without interviewing.
At any rate, all relevant selection data can generally be procured
from a well-devised application form; a resume or curriculum vitae;
reference-checking; testing; and other impartial, impersonal procedures.
Even when the FTFI can be legitimized by the impracticability
of more objective methods, the interview encounter should be structured
to minimize interviewers' exposure to extraneous cues. Telephonic
or blinded interviewing will often suffice.21
Veridicality. Blinded or telephonic interviewing also effectively
deters the concern of Argument 3-applicant mendacity. Besides,
other methods of application verification are far more reliable
than the FTFI. For instance, work history can generally be authenticated
by contacting references, or tenure may be conditioned upon submission
of college transcripts. If fiduciality is a BFOQ, then appointment
could be contingent upon bondability.
Tie-breaking. Argument 4 has impuissant merit, since ample
valid, objective data for ordinal ranking of candidates
is generally affordable without an interview. As an example, most
collegiate programs are able to distinguish among applicants without
FTFIs. Similarly, consider the United States Civil Service Commission,
whose goal has been unbiased, merit-based employee selection since
its establishment in 1883.22 Objective examinations are pivotal
to civil service selection, whereas FTFIs are omitted or standardized.
Consequently, nongermane factors, such as political affiliation,
are less inclined to corrupt decision-makers. Comparably objective
selection systems are prevalent among state and local governments,
and many private organizations.
Rapport. Argument 5 is more difficult to negate, at least
with respect to nongovernmental employers, who arguably have a
right to hire and associate with whomever they choose.23 Some employers
contend that the FTFI helps to find amiable employees with whom
they feel the right "chemistry." A kindred notion is
that as long as at-will employment is the law of the land, any
restrictions on the FTFI will increase turnover and lower efficiency,
since employers are more susceptible to terminating employees
whom they cannot prescreen in person. Interestingly, similar arguments
were once made against Title VII equal employment opportunity
provisions.24 Perhaps it is time to put the chemistry and conviviality
precepts to bed, since they indulge an irrational cliquishness
at the expense of productivity, diversity, and the long-run
ambiance of the organizational environment.
Not only are arguments promoting the FTFI discreditable, but there
are many objections to FTFI use, most of which have traditionally
been acknowledged dismissively, including: (1) anxiety and other
psychological traumas stemming from competitive interviewing,
adversely affecting normally articulate and poised individuals;
(2) the predilection of interviewers to focus on immutable
traits25; (3) the propensity of the FTFI to encroach upon or supplant
more objective selection criteria26; (4) the FTFI's dubitable validity;
(5) illicit consequences of the FTFI, including disparate treatment,
adverse impact, and pattern or practice discrimination;
and (6) the FTFI's exiguous cost-effectiveness or supererogativeness.
Each argument will now be explored.27 [Endnotes]
Both the Equal Employment Opportunity Commission (EEOC)28 and most
industrial psychologists29 support the view that subjective selection
procedures, including the FTFI, should not be immune from
validation principles.30 A "selection procedure" may be
defined as "any measure . . . used as a basis for any employment
[or scholastic] decision," including "informal or casual
interviews."31 A selection procedure is permissible if it (1)
has no adverse impact on any protected class32; (2) is justified
by "unusual circumstances," such as business necessity;
or (3) is validated.33 In any event, the EEOC recommends subjecting
all evaluation systems to criterion-related, content,
or construct validation.34 [Endnotes]
Criterion-related Validity. The preferred method of validation
is contingent upon finding a significant correlation between
applicants' ratings on a selection criterion and their subsequent
performance.35 Unfortunately, criterion-based validation is sometimes
unattainable, because it theoretically requires accepting applicants
irrespective of their criterion score, so that a randomized
sample of ratings is available for correlation with performance.
In such circumstances, it may be necessary to resort to concurrent
validation, wherein criterion measurements are made of current
employees or students for comparison with their performance history.36
Content Validity. Statistical significance testing is not
required in content validation, which reflects the extent of resemblance
between the selection procedure and actual occupational or academic
tasks.37 To illustrate, a typing test has strong content validity
for the selection of typists.38 In contrast, the traditional FTFI-which
measures one's ability to respond tactfully and impressively to
an inquisitorial concatenation of interrogatories-lacks content
validity for all but a few callings.
Unless a selection test scrupulously simulates job or school
performance requirements, content validation is inexpedient. More
than that, content validity is an inapropos rationale for criteria
readily learned on-the-job or in the classroom.39 Most people will
rapidly adapt to the social milieu and role requirements of a
new situation. Hence, the validity of an interviewer's vaticination
that an applicant will not "fit in" may be nugatory.
Oftentimes, mediocre interviewees immerse themselves in work or
school assignments and emerge as group leaders, while charismatic
interviewees prove to be unreliable laborers.40 Considering the
dubious content validity of the FTFI vis-à-vis communicational
and social skills, other validation techniques are apropos.
Construct Validity. Another technique, construct validation,
maps the relationships between abstract qualities and performance.41
Measures of recondite faculties-like creativity, intelligence,
or gregariousness-may lack content validity, but may nevertheless
predict performance. However, whenever a construct is applied
for selective purposes, it should be bolstered by criterion-related
validation. Hence, if an employer intends to use the FTFI to evaluate
leadership skill, each interviewee should be numerically rated
for leadership. Then the nature, if any, of the correspondence
between FTFI-rated leadership skill and long-term productivity
can be monitored.
Invalidity of the Face-to-Face Interview
Evidence corroborating FTFI validity is so unremarkable that incantations
of BFOQ or business necessity should be addressed with skepticism.42
Although the FTFI may be improved by performance-related schematization,43
interviews inveterately range from flexibly scripted to improvisational
to totally unstructured, and candidates are routinely rated so
subjectively that no audit trail survives for subsequent examination
of the selection process.44 Also, interviewers seldom receive more
than cursory instruction concerning the purposes and techniques
of interviewing, or the methodology for accurately rating interviewees.
Concomitantly, FTFIs tend to be extemporaneous, and interviewee
ratings insufficiently precise or detailed for satisfactory interjudge
replicability.45 In sum, FTFI proceedings are often capricious.
Thus far, the unimpressive efforts at FTFI validation have primarily
been criterion-related statistical studies. Some investigations
suggest relatively small associations between interview ratings
and subsequent performance.46 All the same, when combined with more
dispassionate selection methods, the FTFI explains an inappreciable
proportion of performance variance47. In brief, FTFI validity
is at best equivocal, mirroring its arbitrary and discriminatory
influences in personnel actions.
A face-to-face interview's discriminatory effects may be established
in terms of: (1) disparate treatment-i.e., intentional
discrimination; (2) disparate impact-i.e., statistically
attestable exclusionary effects upon protected groups caused by
facially neutral selection criteria; and (3) pattern or
Discrimination actions face evidentiary obstacles which are often
insuperable.49 Both disparate treatment and pattern or practice
actions generally require some overt or implicit evidence of discriminatory
intent50-yet interviewers seldom impart any trace of prejudicial
behavior. Records of selection interviews may not be retained,
so selection rationales may be impossible to elucidate. Coincidentally,
applicants rarely request feedback concerning selection procedures,
particularly when rejected, because: (1) organizations consider
such data proprietary, and will customarily relinquish nothing
unless at least threatened with legal action; (2) most students
and job-seekers reconcile themselves to rejection and arbitrariness
as inevitable prices of the application game; and (3) hunting
for a smoking gun can be time-consuming, embarrassing, humiliating,
and enervating. The informational barricades are so formidable
that disparate treatment actions are generally prohibitively costly,
absent egregiously inculpatory collateral evidence.
This dearth of valid, accessible selection data is particularly
constraining in disparate impact and pattern or practice cases,
where statistical analysis is integral to successful presentation.
Efforts are further stultified by judicial ignorance of or intolerance
toward statistics. Yet illegality may only be demonstrable statistically.
Even when a plaintiff statistically or anecdotally establishes
a prima facie case of discrimination,51 he retains the ultimate
burden of persuading the fact-finder that the discrimination was
unwarranted, and (in disparate treatment cases) intentional. Thus,
despite the proscribability of a selection procedure, there may
be countervailing legitimate reasons for rejecting an applicant.
In such "mixed motive" cases, the complainant must prove
that "but for" the impermissibly discriminatory actions,
she (or similarly situated individuals) would have been accepted,
hired, retained, or promoted.52 Notwithstanding all of these procedural
burdens faced by plaintiffs, there is a nonnegligible body of
FTFI-related discrimination litigation.
Of all selection procedures, the FTFI is most likely to function
as a vehicle for concealment of bigotry or disparate treatment.53
An applicant can establish a prima facie case of disparate treatment
by persuading the trier of fact that (1) he is a member of a protected
class, (2) he was qualified for a position, (3) he was rejected,
and (4) the interviewer [subsequently] accepted another individual.54
The burden of production then shifts to the interviewer to establish
a genuine issue of material fact55 as to whether there were legitimate,
nondiscriminatory reasons for his actions.56 If the interviewer
fulfills this rather unexacting requirement, then the applicant
must persuade the trier of fact by a preponderance of the evidence
that the interviewer's explanations were pretextual,57 or
that the interviewer intentionally acted discriminatorily.58
FTFI-related disparate treatment case law has developed primarily
through Title VII racial or sexual discrimination claims. However,
racial disparate treatment claims infrequently prevail, in part
because nearly all interviewers are socialized to conceal racially
biased attitudes.59 Claims based on color, religion, or national
origin are similarly frustrated by discreetness and surreptitiousness.
Gender- and age-based disparate treatment actions are liable to
fare better, because overt sexism and ageism remain prevalent
among interviewers-at least behind closed doors. For example,
an interviewer might (1) intimate to fellow employees a preference
for male applicants60; (2) ask a female applicant (a) what she would
do if she married or became pregnant,61 (b) whether her husband
supports her employment plans,62 or (c) whether her children might
be harmed by her work schedule63; or (3) make inquiries indirectly
educing an applicant's age,64 remark about the employment-seeking
difficulties of older applicants,65 or indite evaluative comments
with ageist connotations.66 Such queries or comments do not always
constitute disparate treatment,67 but Title VII is breached when
a question is disproportionately directed at applicants of either
gender without legitimate purpose-and the ADEA is contravened
whenever age becomes a selectional issue.68
Regardless of the legal groundwork, allegations that the FTFI
was instrumental in disparate treatment are generally disaffirmed,
because courts are disposed toward accepting even whimsical FTFI-based
selection decisions.69 For example, Bacon70 was a Title VII
disparate treatment claim brought by a black male of Japanese
national origin whose métier was laboratory research. While
seeking a lab tech position, Bacon was queried about a Title VII
action that he previously filed. Afterward, the interviewer-betraying
a retributive susceptivity-admonished Bacon to "get
along."71 In due course, the opening was denied to Bacon, although
from an objective standpoint he was surpassingly qualified. At
the time of Bacon's interview, the job description did not mention
any communication skills, and the hiring policy specifically excluded
personality tests. Thus, to avoid Title VII liability, the supervisors
clandestinely restructured the job to allow lesser qualified individuals.
In holding for the defendant employers, the district court apparently
acquiesced alacritously to FTFI-related assertions that Bacon
was "very loose and unresponsive in his questions,"
"[talked] about things irrelevant," wore "inappropriate"
clothing, and was "not a people person."72
The deferential standard of review bestowed upon Bacon's interviewers
is typical of FTFI discrimination claims. Countenanced rationales
for rejection of interviewees run the gamut, and include physical
appearance,73 personality,74 sexual aberration,75 energy,76 loquaciousness,77
taciturnity,78 forthrightness,79 articulateness,80 accent,81 veterans'
preference,82 and nepotism.83 Such broad discretion is contrary to
public policy favoring merit-based, anti-discriminatory pursuit
of career opportunities. Therefore, when the FTFI is implicated
in disparate treatment, the burden to document its obligatoriness
and validity should lie with the interviewer.84 [Endnotes]
Disparate impact (also known as adverse or disproportionate
impact) occurs when an apparently neutral selection procedure,
such as an interview, tends to have impermissible, statistically
confirmable discriminatory effects upon minorities, or among individuals
within minority groups.85 Ergo, despite no discriminatory animus
on the part of an interviewer, and even when affirmative action
results in proportionate representation of minorities within
a workforce or student body, the FTFI may be found to have an
impermissibly exclusionary effect upon identifiable classes of
One of the best statistical methods for substantiating disparate
impact is multiple regression analysis. The dependent
or outcomevariable (Y) is the probability
of selection at any given stage of the application process, such
as after the FTFI. The range of prediction values for Y might
be 0 (0% likelihood of acceptance) through 1 (no possibility of
rejection). Independent or predictor variables (denotable
as X1, X2, ..., Xn) might include (1) a dichotomous or dummy87
variable specifying whether the applicant is a member of the relevant
protected class; (2) other dummy or ordinal variables indicating
applicant's fulfillment of job-related criteria; and (3) continuous
variable measurements, such as interview or aptitude test scores.
More specifically, a typical multiple regression analysis might
employ a dummy variable (XFMP) to indicate whether the applicant
is a former mental patient. If yes, then XFMP = 1; otherwise,
XFMP = 0. Additionally, assuming that educational attainment is
positively associated with job performance, schooling might be
represented by an ordinal variable (Xeduc). Thus, a high school
diploma (the minimal prerequisite) might be designated Xeduc =
0, a college graduate Xeduc = 1, and an advanced degree Xeduc
= 2. Lastly, continuous variables might include percentile scores
on an interview (XFTFI) and task simulation (Xsim).88 The values
of applicants' X and Y variables are used to formulate a multiple
regression equation, which in turn is applied to predict Y for
any applicant from his X values. Discrimination is demonstrated
by an indefensible, statistically significant discrepancy in the
forecasted outcomes (Y) of minority group members (i.e.,
XFMP = 1) versus non-members (i.e., XFMP = 0).89
A prima facie case of adverse impact is substantiated whenever
a test is computed to have a selection rate for one protected
class which is less than eighty percent of the rate for any other
protected class.90 This four-fifths rule is breached, for
example, when the probability that a white applicant will qualify
for a position based on unvalidated selection criteria is 50%
while a black applicant's chances are less than 40%, even if other
selection procedures, such as FTFIs, are used to insure that the
proportion of black acceptees reflects their percentage in the
eligible population. The eighty percent rule might also be violated
by an interview tending to screen out more than one in five otherwise
fully qualified91 applicants diagnosed with borderline personality
syndrome92-protected by the ADA93 and the Rehabilitation Act94-on
the basis of character, sociability, or attitude.95
Although FTFI-induced disproportionate impacts are rampant, the
FTFI remains firmly entrenched, sustained in part by a practice
of dubitable tenability-affirmative action "stopgapping." 96
In such a "bottom-lining" or "quota-filling"
scenario, an applicant's objective uncompetitiveness is typically
counterpoised by inflated ratings on unvalidated criteria, particularly
the FTFI.97 This policy may be rationalized as recognizing triumph
over socioeconomic barriers, or as fostering heterogeneity in
a labor force or student body.98 Just the same, the consequence
of such recruitment practices is disproportionate exclusionary
impact upon two subgroups: (1) rejectees among affirmatively recruited
minorities who: (a) are more competitive than other minority group
members on validated criteria, but (b) receive unfavorable scores
on unvalidated criteria; and (2) rejectees who do not represent
any affirmatively recruited minority group, but who: (a) are competitive
on validated criteria, and (b) receive unfavorable scores on unvalidated
criteria.99 Thus, the effect of basing affirmative action on an
unvalidated FTFI-or any dubious selection method-is
to unjustifiably create a preferred minority subclass, a disfavored
minority subclass, and a disfavored non-minority subclass100-violating
Griggs101 and Teal.102
In any case, prima facie evidence of such disparate impact is
rebuttable on several grounds,103 including: (1) a smaller proportion
of qualified individuals within the minority group in question
than within the entire recruitment population,104 (2) improper specification
of the recruitable population,105 (3) business necessity,106 (4) bona
fide seniority system,107 and (5) lack of causation.108
Despite the availability of such defenses, recruiters should strive
to minimize disparate impact liability by circumstantiating the
validity and performance-relatedness of all selection criteria.109
Prior to Griggs, for instance, written tests having little
or no relationship to work descriptions were frequently utilized
as selection hurdles. Nowadays, if any written test is employed,
chances are that it will be carefully scrutinized for productivity-related
validity. In contrast, the FTFI-although far less objective
than most written tests-continues to elude scrutiny.110
Progress may depend upon greater attention to the FTFI's adverse
impacts among policymakers, governmental administrators, and the
judiciary. For example, when the validity of an interview is at
issue in a Griggs-type adverse impact challenge, instead
of deferring to the selector, EEOC investigators and the courts
should consider "(1) what level of communicative ability
the job [or academic program] requires, and (2) whether the employer
[or school] made a valid determination of whether the applicant
or employee met the qualifications."111 Furthermore, Title VII,
the ADEA, and the ADA should be amended-or jurisprudence
should evolve at least far enough-to allow the fashioning
of an irrebuttable presumption of discrimination by merely revealing
that the recruiter failed to validate selection criteria in accordance
with essential skills.112 [Endnotes]
Pattern or Practice Discrimination
Like disparate impact, prima facie pattern or practice discrimination
is evidenced by statistically significant historical underrepresentation
of a protected minority.113 Additionally, anecdotal evidence of animus
is generally compulsory.114 All the same, a well-conducted critical
analysis of the purposes, anticipated effects, and validity of
selection criteria may sometimes be enough for a winning case.115
For example, a pattern or practice of discrimination against the
psychiatrically handicapped may be establishable where a casual
interview is accorded substantial weight in calculating a composite
Pattern or practice litigation is more likely to succeed via class
rather than individual action, not only because statistical proof
of disparate impact is expensive, but also because of the exigency
of anecdotal affidavits. That is, averments of a pattern or practice
of disparate treatment will probably fail when statistical findings
are not buttressed by recitations of specific discriminatory acts
against minority group members.117 [Endnotes]
Since business necessity implorations for the traditional selectional
FTFI are tenuous (absent a BFOQ assessability rationalization),
recruiters should seek more objective substitutes. Accordingly,
telephonic, blinded, or standardized interviewing should be considered
where interpersonal skill or congeniality cannot be adequately
surveyed from resumes and references. Better still, naturalistic
performance simulations will achieve levels of content (and criterion-related)
validity unattainable from the FTFI.118 Remonstrations that such
alternatives are infeasible or draconian have little merit considering
that interviewing is comparatively expensive, yet its cost-effectiveness
and validity may be illusory.
Psychiatrically handicapped individuals (PHIs), although one of
the largest minority groups,119 may be the most vulnerable to discrimination.120
PHIs are distinguishable from other minorities by: (1) current
mental illness, (2) a history of mental illness, or (3) stigmatization121
resulting from a perception by others-whether accurate
or amiss-that an individual is or was previously mentally
ill.122 PHIs face difficulties not only in obtaining and retaining
employment, but even in receiving the necessary education or training
for a productive and fulfilling career. Such difficulties can
be mitigated by eliminating nonessential appraisal of social or
interpersonal skills in academic and vocational settings.
When evaluation is contaminated by facile impressions of articulateness
or attractiveness, PHIs are at a significant competitive disadvantage.
A psychiatric handicap or background is seldom invisible, regardless
of the interpersonal skill or affability of the interviewee, and
particularly when facing a discerning interviewer. Moreover, an
interviewer's perception of a picayune peccadillo or piddling
personality peculiarity is apt to prompt rejection, even of a
nonpareil applicant. A PHI's only handicap may be stigmatization.123
If so, then no matter how subtly the stigma is manifested, the
PHI's efforts are unlikely to proceed beyond the FTFI.124
FTFIs also relegate PHIs to a Hobson's choice. On the one hand,
a psychiatrically handicapped interviewee can attempt to hide
her status and "pass" as non-handicapped in order to
enhance her competitiveness. Such dissimulative efforts are predominantly
futile, since most interviewers are adept at exposing PHI's psychosocial
vulnerabilities.125 Secondly, accommodations,126 some of which may be
indispensable, are unavailable to the covertly handicapped. Thirdly,
if selected, the covert PHI may have no protection against future
handicap-related discrimination.127 For instance, if a PHI suffering
from bipolar disease appears irascible during a hypomanic phase,
she may be peremptorily terminated on the basis of her inability
to "get along" with others. If she then divulges her
handicap, a nondiscriminatory subterfuge for the dismissal will
very likely be contrived. Such paralogism may be impossible to
refute, unless flagrantly pretextual.
On the other hand, a PHI may reveal his handicap prior to or during
the FTFI. Such exposé may be provoked by trepidation about
the aforementioned dangers of nondisclosure. Additionally, the
PHI may anticipate that ambition in the face of disability will
evoke a sympathetic response, or that conquering a handicap will
be viewed as salutary. Concurrently, the PHI may hope that disclosure
will lead to affirmative action or diversity program consideration,
or felicitous accommodations in the work or school environment.
Realistically, whether or not an avowed PHI is selected, handicap
declaration will undoubtedly trigger subtly discriminatory behavior.128
Moreover, once PHI status is asseverated, the applicant may be
required to certify the handicap, especially if accommodations
are contemplated. Lamentably, the certification process not only
infringes upon medical confidentiality,129 but also arms even
conscientious selectors with evidence for assailing PHIs' qualifications.
Even if handicap disclosure is deferred until immediately after
acceptance, medical privacy is forsaken, and the potential for
subtle and insidious discrimination is escalated for the indefinite
Such career impediments may persist and even mushroom because
PHIs are relatively impotent politically and socioeconomically.
Moreover, PHIs are affronted by some uniquely demoralizing hindrances.
For instance, while proportional representation is commonly sought
for racial minorities and some overt handicaps, scarcely any companies
or academic institutions are constructively concerned about the
plight of PHIs. On the contrary, employers and collegiate programs
increasingly emphasize ill-defined interpersonal skills and vague
character traits when evaluating either potential or performance--systematically
Discrimination actions pursuant to the ADA or Rehabilitation Act
follow a paradigm analogous to Title VII actions. 131 Therefore, disparate
treatment, disparate impact, and pattern or practice approaches
are all theoretically available to victims of handicap discrimination.132
In a typical disparate treatment (and pattern or practice) action,
a rejected or disciplined PHI might establish a prima facie case
by pointing to: (1) oral or written comments by an interviewer
hinting at an unsympathetic orientation toward PHIs,133 (2) arbitrary
or inconsistent use of psychiatric rationales for selectional
or disciplinary decisions,134 or (3) controvertible standards predisposing
toward PHI exclusion.135 If the PHI escapes summary judgment, then
the selector must demonstrate the productivity-relatedness and
validity of the factors used in the selective or disciplinary
action.136 After the selector negotiates that encumbrance, the PHI
may show that selection criteria with less discriminatory effects
will serve the recruiter's interests in efficient and dependable
scholarship or workmanship.137
Least discriminatory means and task-relatedness principles
also apply in disparate impact and pattern or practice actions.
Additionally, disproportionate impact must be shown, perhaps by
submitting that the defendant: (1) rejects or discharges PHIs
to a statistically significant extent; (2) fails to meet regulatory
guidelines prescribing PHI accommodation, affirmative action,
or medical confidentiality;
(3) maintains inadequate records concerning PHIs; or (4) does
not knowingly select PHIs. In a pattern or practice suit, the
plaintiff would combine such disproportionate impact evidence
with anecdotage recounting overt animus toward PHIs.138
Unfortunately, there is a dearth of FTFI-related discrimination
case law involving psychiatric disability. There are several reasons
for this paucity, beyond the general scarcity of FTFI discrimination
precedents.139 First, PHIs tend to be among the most socioeconomically
disadvantaged denizens of society, and seldom can afford or command
the interest of an attorney. Secondly, PHIs learn to endure rejection
and lower aspirations. Thirdly, some PHIs may be overwhelmed by
the stress of lawsuits. Finally, the illiberal attitudes and misguided
beliefs that result in tendentious treatment of PHIs dominate
our culture, and are often sequaciously accepted by PHIs.
The most pragmatic way to accommodate all applicants, including
PHIs, is to ensure that all selection criteria are: (1) necessary
to measure BFOQs, (2) validated, and (3) the least biased feasible
means.140 Such quality assurance141 of evaluation procedures
can achieve at least three goals: (1) a more streamlined, efficient,
and cost-effective selection process; (2) selection criteria which
conform to EEOC guidelines, minimizing infringements of Title
VII, the ADEA, or the ADA; and (3) enhanced adaptability to applicants'
reasonable requests for accommodation.142
Applicants and employees can be encouraged to reveal their handicaps
if disclosure results in effective accommodations, and if discreetness
is assured. To exemplify, each applicant should be advised to
contact the Disability or Human Resources Specialist if desiring
an accommodation, such as an alternative to the FTFI. The specialist
would resolve whether conversational, interpersonal, public speaking,
or salesmanship talent is a BFOQ. If so, the PHI might be appraised
via educational records and work history, perhaps combined with
personal or professional references. Even if direct observation
of oral skills were mandatable, the Specialist might be able to
replace the FTFI with telephonic interviewing, blinded task simulation,
or an on-the-job audition.143
Such accommodative flexibility should be applied to objective
as well as subjective selection procedures.144 For instance, where
scoring systems engender lower ratings among PHIs, items may need
to be revised or deleted, insofar as they do not correlate directly
with essential, unaccommodable tasks. Also, where qualitative
judgments are inevitable, PHIs might be permitted to take multiple
examinations with different raters. Such multi-testing is useful
in calibrating intra- and interrater reliability, and may serendipitously
detect phenomena tending to have unjustifiably deleterious effects
upon minorities. When all is said and done, the PHI's best examination
results, unless demonstrably spurious, might be allowed to preempt
Most critically, if PHIs are to fully avail themselves of accommodations,
they must be assured that the beneficence of exposure will outweigh
its maleficence. Such assuagment requires fulfillment of a few
preliminary contingencies. First and foremost, PHIs need to be
able to monitor the repercussions of handicap revelation. Therefore,
just as procedural and substantive due process rights are routinely
granted to disciplined or discharged employees and students, disapproved
applicants should be entitled-at least upon request-to
prompt, detailed, written explanations of their rejection.145
Secondly, professional services may occasionally augment PHI performance.
Accordingly, a vocational counselor, industrial psychologist,
social worker, or comparable professional should be available
optionally,146 especially before disciplinary action is taken against
a PHI. Additionally, orientational and instructional programs
should educate employees and students about the psychiatrically
handicapped. Without such safeguards, the bulk of PHIs will remain
closeted, and few PHIs will attain employment security. Until
FTFI use entails such accommodativeness and validation, the FTFI
will continue to foment exclusionary behavior with pernicious
and exorbitant repercussions.
The face-to-face selection interview is ubiquitously employed
as a selection procedure, despite the fact that it is infrequently
valid or validated, and is generally unsystematically administered
by untrained evaluators. Because of its ineluctable subjectivity,
the FTFI is a vehicle for arbitrariness and discrimination toward
nearly every minority, especially the psychiatrically handicapped.
Therefore, FTFI use should be proscribed unless the selector:
(1) establishes necessity; (2) employs an FTFI design which minimizes
discrimination and maximizes validity; (3) proffers reasonable
accommodations, including feasible FTFI alternatives; (4) maintains
medical confidentiality; (5) promotes organizational awareness
of disability-related problems and accommodations; and (6) tenders
to any rejected interviewee, upon request and in a timely manner,
a fully documented explanation for the adverse selection decision.
"Objective" phenomena are quantifiable, and afford
negligible interpretational latitude to the percipient.
See Equal Employment Opportunity Commission Rules and
Regulations: Equal Employment Opportunity for Individuals with
Disabilities, 29 C.F.R. § 1630.10 (1991) [hereinafter EEOC
Regulations] (defining selection criteria).
For the BFOQ concept, see § 703(e(1) of Title
VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. §
2000e-2(e)(1) [hereinafter Title VII] (prohibiting discrimination
based on race, color, religion, sex, or national origin), amended
by 86 Stat. 104; and § 4(f)(1) of the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 623(f)(1) [hereinafter
ADEA] (lawful employer practices).
For explications of the business necessity approach, see
Title VII, supra note 3, § 2000e-2(k)(1)(A)(i) (as
a defense to a challenged employment practice with disparate impact)
and Title I § 101(10) of the Americans with Disabilities
Act of 1990, 42 U.S.C. § 12111(10), Pub. L. 101-336, 104
Stat. 327 [hereinafter ADA] (undue hardship), amended by
the Civil Rights Act of 1991, 42 U.S.C. § 1981, Pub. L. 102-166,
105 Stat. 1071.
For instance, despite qualifying for high-profile positions,
a psychiatrically handicapped individual might only be able to
secure a menial livelihood.
E.g., fully qualified individuals diagnosed with borderline
personality syndrome (DSM-III) may be less likely to receive favorable
FTFI evaluations than other fully qualified psychiatrically handicapped
The terms "selector" and "recruiter" are
used interchangeably to refer to interviewers, or more generally
to individuals with discretionary authority in selection decisions.
White v. Secretary of Interior, 51 M.S.P.R. 623 (EEOC
01921110, 3620/A11) (1993) (interview inappropriately used to
justify promotion of pre-selected incumbent).
E.g.,Vuyanich v. Republic National Bank, 505
F. Supp. 224, 393 (N.D. Tex. 1980) (Title VII inapplicable where
sexually segregated training program emphasized female attractiveness);
Malarkey v. Texaco, Inc., 559 F. Supp. 117, 121-22 (S.D.N.Y.
1982) (no Title VII claim where younger females enjoyed promotional
advantages over older females); andWilliamson v. Owens-Illinois,
Inc., 589 F. Supp. 1051, 1059 (N.D. Ohio 1984) (termination
based on appearance ("sloppy dress" and "overweight
condition") irrelevant in ADEA suit). See also Horowitz
v. University of Missouri, 435 U.S. 78, 91 n.6 (1978) (denial
of medical diploma to intermittently unclean top student unchallengeable).
See generally Note, Facial Discrimination: Extending
Handicap Law to Employment Discrimination on the Basis of Physical
Appearance, 100 HARV. L. REV. 2035, 2052 (1987) [hereinafter
Facial Discrimination] (recommending sanctions against
See, e.g., Paul S. Miller, Note, Coming Up Short:
Employment Discrimination Against Little People, 22 HARV.
C.R.-C.L. L. REV. 231 n.20 (1987) (short male with business degree
and strong recommendations rejected in seventy consecutive interviews)
and David B. Allen & Norman C. Fost, Growth Hormone
Therapy for Short Stature: Panacea or Pandora's Box?, 117
J. PEDIATRICS 16, 17-19 (1990) (subnormal height imposes disadvantages
in competition for schools, jobs, income, and mates), cited
in Nancy A. Davis, Symposium on Biotechnology and Health Care:
Social and Conceptual Transformations: Comment, Morality and
Biotechnology, 65 S. CAL. L. REV. 355, 371 n.12 (1991).
Somatotype might also be termed physique, adiposity, or body
weight. Thus far, somatotypical handicap designation has been
limited to obesity, and then only by a few states. SeeTudyman v. United Airlines, 608 F. Supp. 739, 746 (C.D.
Ca. 1984) (body builder's condition a voluntary impairment, not
a protected handicap). But cf., e.g., Patricia Hartnett,
Note, Nature or Nurture, Lifestyle or Fate: Employment Discrimination
Against Obese Workers, 24 RUTGERS L.J. 807 (1993) (obesity
is protectable disability) and Joanne Silberner, Obesity:
If the Genes Fit..., 129 SCIENCE NEWS 56 (1986) (obesity determined
equally by heredity and environment). See generally Rehabilitation
Act of 1973, 29 U.S.C. § 706(8) [hereinafter Rehabilitation
Act] (disabilities qualifying for rehabilitative services), amended
by the ADA, supra note 4, and the 1991 Civil
Rights Act, supra note 4.
E.g.,Nord v. U.S. Steel Corp., 758 F.2d 1462,
1466-67 (11th Cir. 1985) (rejecting argument that employee failed
to advance because of "unpleasant personality" where
employer made sexist remarks); Hopkins v. Price Waterhouse,
825 F.2d 458, 463, 263 U.S. App. D.C. 321 (D.C. Cir. 1987) (sexually
stereotyped reactions to employee's "unappealing personality"
were significant factors in her non-promotion); andRobbins
v. White-Wilson Medical Clinic, Inc., 660 F.2d 1064, 1067
(5th Cir. 1981) ("pleasant personality" requirement
was pretext for Title VII infraction). See also Mark D.
McGarvie, Personality: May It Sway Employment Decisions?,
64 WIS. LAW. 21 (1991) (advising employers wishing to reject or
terminate employees on grounds of personality clash or unamicable
work atmosphere to minimize liability by refraining from stereotyping).
The FTFI also rewards applicants for Machiavellianism, disingenuousness,
"Subjectivity" exists when unquantifiable or intangible
criteria are assessed, when intuition or judgment is exercised,
or when the rater has substantial evaluative flexibility.
The traditional American institution of slavery, for example,
was eventually rendered defunct by U.S. CONST. amend. XIII and
the Reconstruction-era Civil Rights Acts, 42 U.S.C. § 1981
et. seq. (1866).
Equal protection scrutiny, pursuant to U.S. CONST. amend.
XIV, § 1, tends to be heightened for Title VII classifications
(i.e., race, color, religion, sex, and national origin). However,
strict scrutiny is limited to a handful of "suspect"
classifications (race, color, national origin, alienage), and
even intermediate scrutiny is confined to a very few "quasi-suspect"
classifications (gender, legitimacy). Furthermore, other classifications-whether
statutorily enumerated (e.g., disabilities) or not (e.g., dwarfism,
homeliness, plebeianism)-are at best accorded a mere rational
basis standard of review.
Cf., e.g., Frank L. Schmidt et al., Meta-Analyses
of Validity Studies Published Between 1964 and 1982 and the Investigation
of Study Characteristics, 37 PERSONNEL PSYCHOLOGY 407, 415
(table 4) (1984) (mean validity of supervisor and peer evaluations
was .427, compared to .248 for cognitive tests and .243 for biodata).
But cf. Charles B. Craver, The Application of the Age
Discrimination in Employment Act to Persons Over Seventy,
58 GEO. WASH. L. REV. 52, 178 (1989) (subjectivity indigenous
to supervisory ratings persistently evinces the same subtle, stereotypical,
virulent penchants as interviews).
In a blinded interview or audition, the applicant and interviewer
are typically separated by an opaque partition. For either the
blinded or telephonic interview, the applicant's voice may be
transformed so that pitch and accent are indiscernible-thereby
reducing the effects of gender, effeminacy, androgyny, race, ethnicity,
However, the same validity and reliability requirements should
apply to all selection modes, including those interposed in executive
recruitment regimes. See ROBERT M. GUION, PERSONNEL TESTING
458 (1965), cited in Elizabeth Bartholet, Application
of Title VII to Jobs in High Places, 95 HARVARD L. REV. 945,
1027 n.27 (1982). See alsoLeisner v. New York Tel.
Co., 358 F. Supp. 359, 368-69 (S.D.N.Y. 1973) (subjective
selection processes for upper-level jobs must be validated). See
generally MARY G. MINER & JOHN B. MINER, EMPLOYEE
SELECTION WITHIN THE LAW 145-65 (1979) (validity of interview
in upper management selection not demonstrated), cited in
Bartholet, supra at 1027; and Melary Baehr,A Review of Employee Evaluation Procedures and a Description
of "High Potential" Executives and Professionals,
1 JOURNAL OF BUSINESS AND PSYCHOLOGY 172 (1987) (questioning the
validity of interviewing and psychological testing in selection
of high-level employees).
Facial Discrimination, supra note 9, at 2052
These techniques can be far more objective than FTFIs if,
for example, all interviewees are asked to respond via microphone
to an identical series of predesigned, short-answer questions,
and replies are digitally recorded. Then (1) selectors can subsequently
refer to each answer whenever desired, and (2) frequency, amplitude,
and other voice parameters can be modulated. Cf. Beatrice
Bich & Dao Nguyen, Comment, Accent Discrimination and the
Test of Spoken English: A Call for an Objective Assessment of
the Comprehensibility of Non-Native Speakers, 81 CAL. L. REV.
1325, 1348 (1993) (describing standardized, blinded interview
available to applicants for whom English is a second language).
See also Facial Discrimination, supra note 9, at
2052 n.89 (virtually every major American symphony orchestra conducts
Civil Service Act, 5 U.S.C. § 3301.
"Congress shall make no law . . . abridging the freedom
of speech . . . " U.S. CONST. amend. I.
Title VII, supra note 3, §§ 705 (42 U.S.C.
2000e-4, 78 Stat. 258) (establishing the Equal Employment Opportunity
Commission), 703 (unlawful employment practices).
Immutable traits may be categorized as innate (e.g., race,
color, gender, genetic infirmities), congenital (e.g., some birth
defects, perinatal injuries, national origin), traumatic (e.g.,
spinal lesions, amputations, cicatrices), developmental (e.g.,
stature, secondary sexual characteristics, transsexualism, accent),
biopsychosocial (e.g., most mental illness, personality, some
overweightness), pathophysiological (e.g., diabetes, lupus erythematosus,
muscular dystrophy, AIDS), or geriatric (e.g., wrinkling, alopecia,
senile melanoderma, Alzheimer's disease).
Immutable traits may be temporal. For example, handicaps are usually
considered immutable, yet some disabilities are transitory (e.g.,
treatable maladies). However, presumably voluntary activities
(e.g., alcohol or drug abuse, habitual gambling, transvestism)
are not deemed immutable. But cf. EEOC Regulations, supra
note 2, § 1630.3 (alcoholism and drug addiction protectable
disabilities, if no contemporaneous illegal use or enrolled in
rehabilitation program) andRezza v. Dept. of Justice,
698 F. Supp. 586, 587 (E.D. Pa. 1988) (treating compulsive gambling
Not surprisingly, the immutability and attendant protected status
of some traits (e.g., obesity, homosexuality) is controversial.
To further complicate matters, there are anomalous traits, such
as religion (voluntary among adults, yet regarded as immutable)
and criminal background (not deigned immutable, despite lack of
current voluntariness among rehabilitated offenders). See generally
EEOC Regulations, supra note 2, § 1630.3(d) (listing
conditions not qualifying as disabilities under ADA); David A.
Larson, Mental Impairments and the Rehabilitation Act of 1973,
48 LA. L. REV. 841, 870 (1988) (delineating mental impairments
covered by the Rehabilitation Act); and Jane M. Draper,
Annotation, What Constitutes Handicap Under State Legislation
Forbidding Job Discrimination on Account of Handicap, 82 A.L.R.4TH
26 (1994) (state laws regarding handicap qualifications). See
alsoCity of Cleburne v. Cleburne Living Center, 473
U.S. 432, 442-43 (1985) (construing immutability).
Assuming that the legitimacy of a selection procedure is inversely
related to the extent to which it permits consideration of immutable
characteristics unrelated to performance, then any rationale for
the FTFI is assailable. See RICHARD A. FEAR, THE EVALUATION
INTERVIEW 35-40 (rev. 2d ed., McGraw-Hill 1978).
See "The Psychiatrically Handicapped Applicant,"
infra pp. 25-28 (further elaborating Arguments 1-3); "Invalidity
of Subjective Selection Criteria," infra pp. 8-12
(Argument 4); "Discriminatory Effects of the Face-to-Face
Interview," infra pp. 12-24 (Argument 5); and
"Cost Effective Alternatives to the Traditional Selection
Interview," infra p. 24 (Argument 6).
Cf. Griffin v. Carlin, 755 F.2d 1516, 1525 (11th
Cir. 1985) (exclusion of subjective practices from disparate impact
analysis encourages employers to use subjective rather than objective
Uniform Guidelines, supra note 28, § 1607.16.Q.
Additional classes have received statutory protection since
the enactment of Title VII, including age (ADEA) and handicap
(ADA). However, these status-based distinctions have yet to attain
the heightened scrutiny consigned to Title VII classifications.
Cf.Cleburne, supra note 25, at 434 (mental
retardation not quasi-suspect classification; therefore, heightened
scrutiny unwarranted) andSchweiker v. Wilson, 450
U.S. 221, 229, 101 S.Ct. 1074 (1981) (suspectness of mental health
Uniform Guidelines, supra note 28, § 1607.16.C.
Id. § 1607.16.F. Such studies necessitate quantifying
FTFI and vocational performance. Id. § 1607.6(B).
Concurrent validation is typically far less robust than criterion-related
validation, particularly if performance predictors are not measured
until long after the hiring process.
Uniform Guidelines, supra note 28, § 1607.16.D.
Robert M. Guion, Content Validity in Moderation, 31
PERSONNEL PSYCHOLOGY 205, 208-11 (1978).
Cf. Robert M. Guion, Scoring of Content Domain Samples:
The Problem of Fairness, 63 J. APPL. PSYCHOLOGY 499, 504-06
(1978) (biases in scoring of content-structured tests often insurmountable).
Interviewing skill may be positively associated with work
fraternization, preoccupation with office politics, ability to
deceive supervisors, and the likelihood of interviewing successfully
with competing firms.
Uniform Guidelines, supra note 28, § 1607.16.E.
See, e.g., George E. Hargrave & Dierdre Hiatt,
Law Enforcement Selection with the interview, MMPI, and CPI:
A Study of reliability and validity, 15 J. OF POLICE SCIENCE
AND ADMIN. 110, 115 (1987) (interview no more efficacious than
psychological testing); Frank J. Landy, The Validity of the
Interview in Police Officer Selection, 61 J. APPLIED PSYCHOLOGY
193 (1976) (global interview recommendations unrelated to performance);
and Marvin D. Dunnette & Walter C. Borman, Personnel
Selection and Classification Systems, 30 ANN. REV. PSYCHOLOGY
477, 510 (1979) (commenting on the dearth of unbiased performance
predictors). But cf. Richard D. Arvey & James E. Campion,
The Employment Interview: A Summary and Review of Recent Research,
35 PERSONNEL PSYCHOLOGY 281, 289 (1982) (interview judgments can
be valid indicators of later job performance) and Gerald
R. Ferris et al., Personality and Ability Predictors of Training
Performance for Flight Attendants, 11 GROUP AND ORGANIZATIONAL
STUDIES 419 (1986) (constructs identified through hierarchical
regression analysis added significantly to explained variance
in flight attendant training performance).
Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp.
952, 974 (D.D.C. 1980) (unvalidated interview rejected for lack
of job-relatedness, but better tailored interviews may be vindicable),
aff'd, 702 F.2d 221 (D.D.C. 1981). See also Jeff
A. Weekley & Joseph A. Gier, Reliability and Validity of
the Situational Interview for a Sales Position, 72 JOURNAL
OF APPLIED PSYCHOLOGY 484 (1987) (situational interview simulating
a sales transaction correlated significantly with subsequent sales
productivity). ContraFragante v. City of Honolulu,
699 F. Supp. 1429, 1430-31 (D. Haw. 1987) (accent discrimination
venial as business necessity, although interview rating sheets
were "inadequate," "vague," and "not
clearly job related nor well defined"), cited in Mari
J. Matsuda, Voices of America: Accent, Antidiscrimination Law,
and a Jurisprudence for the Last Reconstruction, 100 YALE
L.J. 1329, 1333-41, 1361 n.119 (1991).
Cf. Angelo J. Kinicki & Chris A. Lockwood, The
Interview Process: An Examination of Factors Recruiters Use in
Evaluating Job Applicants, 26 JOURNAL OF VOCATIONAL BEHAVIOR
117 (1985) (recruiters rely on impressionistic rather than concrete
information in making employment recommendations).
The validity of interview ratings may be amplified by recognizing
the predictive abilities or success rates of individual interviewers,
or by correcting for consistent biases among interviewers (e.g.,
interviewers who habitually rate lower or higher than average).
Cf. George F. Dreher et al., The role of the traditional
research design in underestimating the validity of the employment
interview, 41 PERSONNEL PSYCHOLOGY 315 (1988).
Richard R. Reilly & Georgia R. Chao, Validity and Fairness
of Some Alternative Employee Selection Procedures, 35 PERSONNEL
PSYCHOLOGY 1, 6, 15, 24 (1982) (in predicting job proficiency,
mean validities are between .32 and .46 for biodata, such as education
and employment history; .31 for peer ratings; and .19 for interviews).
See also Philip L. Roth & James E. Campion, An Analysis
of the Predictive Power of the Panel Interview and Pre-employment
Tests, 65 JOURNAL OF OCCUPATIONAL AND ORGANIZATIONAL PSYCHOLOGY
51 (1992) (modest incremental validity and explained variance
using structured panel interviewing to predict job performance).
A meta-analysis of 150 validity coefficients revealed that:
(1) no psychosocial techniques enhanced the validity of unstructured
interviews, but (2) predictive validity coefficients can be doubled
with structured interviewing; nevertheless, (3) more variance
remains unexplained with the structured than the unstructured
interview. Willi H. Wiesner & Steven F. Cronshaw, A meta-analytic
investigation of the impact of interview format and degree of
structure on the validity of the employment interview, 61
J. OCCUPATIONAL PSYCHOLOGY 275 (1988). See also Lawrence
A. Waldron, The Validity of an Employment Interview Independent
of Psychometric Variables, 9 AUSTRALIAN PSYCHOLOGIST 68 (1974)
(interviewing psychologists unable to predict applicants' success;
intelligence tests both more valid and more cost-effective).
Pattern or practice discrimination (viz., group differential
treatment) usually requires both the statistical inquiries associated
with disparate impact analysis and the anecdotal evidence of discriminatory
intent connected with disparate treatment.
But cf.Gurmankin v. Costanzo, 556 F.2d 184,
187 (3d Cir. 1977) (debarment of blind from teachers' examination
constitutes 14th Amendment due process violation, creating irrebuttable
presumption of handicap discrimination (minority view)).
Hester v. Southern Ry. Co., 497 F.2d 1374, 1381 (5th
Cir. 1974) (absent discriminatory motivation, nonvalidated employment
tests and subjective hiring interviews not violative of Title
A prima facie case is achieved when the plaintiff establishes
a genuine issue of material fact, precluding summary judgment.
Price Waterhouse v. Hopkins, 490 U.S. 228, 249 109
S.Ct. 1775, 104 L.Ed.2d 268 (1989) (no Title VII offense if employer
proves by preponderance of evidence that same decision would have
been made in absence of impermissible motives).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 792-93,
93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). There are exceptions to
the requirement that the position remain available after the plaintiff's
rejection. See, e.g., Holmes v. Bevilacqua, 794
F.2d 142, 147 (4th Cir. 1986) (where position did not remain open,
plaintiff may prevail by submitting "some other evidence"
of discrimination), cited inLucas v. Dole, 835
F.2d 532, 534 (4th Cir. 1987).
ContraKing v. Trans-World Airlines, Inc., 738
F.2d 255, 257 (8th Cir. 1984) (employer must fulfill clear and
convincing evidentiary standard (minority rule)).
Green v. USX Corp., 896 F.2d 801, 802 (3d Cir. 1990).
Also, the reasons for the selection decision must be "legally
sufficient" (Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 255, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207), "specific"
(IMPACT v. Firestone, 893 F.2d 1189, 1194 (11th Cir. 1990)
(defendant's reasons must be presented with sufficient clarity
to afford plaintiff a full and fair opportunity to demonstrate
pretext)), and "objective" (Miles v. M.N.C. Corp.,
750 F.2d 867, 871 (11th Cir. 1985) (subjective assessments provide
a ready mechanism for discrimination), cited inWatson
v. Fort Worth Bank and Trust, 487 U.S. 977, 1010, 108 S.Ct.
2777 (1988)). But seeVerniero v. Air Force Academy
School Dist. No. 20, 705 F.2d 388, 392 (10th Cir. 1983) (prima
facie case rebuttable with subjective evaluations).
Plaintiff may demonstrate pretext either: (1) directly, by
showing that the interviewer's actions were more likely motivated
by prejudice, or (2) indirectly, by showing that the interviewer's
proffered explanation is unworthy of credence. Burdine,
supra note 56, at 256.
E.g., Turnes v. AmSouth Bank, 36 F.3d 1057,
1062 (11th Cir. 1994).
Strangely, one of the few FTFI-related racially disparate
treatment actions was a reverse discrimination case brought by
a white female. Racial discrimination was found because of the
subjectivity of the FTFI, a history of irregular personnel decisions
favoring black applicants, and the superiority of plaintiff's
credentials. Lucas, supra note 54, at 534.
Barbano v. Madison County, 922 F.2d 139, 143 (2d Cir.
1990) (evidence of Title VII transgression where interviewer told
other supervisors that he would not consider "some woman"
King, supra note 55, at 257 (prima facie case
of discrimination where female applicant asked about pregnancy,
childbearing, and childcare).
Bruno v. City of Crown Point, 950 F.2d 355, 361 (9th
Cir. 1991) (prima facie gender discrimination where female applicant
queried about husband's approbation, but legitimate nondiscriminatory
reason for favoring male applicant was that he was least experienced,
thence could be molded to the department's "way of doing
King, supra note 55, at 257.
Purcell v. Seguin State Bank, 999 F.2d 950, 958 (5th
Cir. 1993) (non-wilful age discrimination found where bank manager
replaced by younger recruit after employer insinuated that elderly
workers were less computer-competent).
Marshall v. Airpax Electronics, Inc., 595 F.2d 1043,
1044 (5th Cir. 1979) (ADEA potentially violated when interviewer
mentioned that 47-year-old applicant might face job-seeking predicament
because of her age).
Id. (personnel administrator's notation on application
that interviewee was "too old" probative of ADEA infraction).
Stukey v. U.S. Air Force, 790 F. Supp. 165, 169 (S.D.
Ohio 1992) (sexually discriminatory interview questions about
childcare and spousal tolerance not per se violations of Title
VII-discriminatory employment decision(s) must be shown).
ContraKing, supra note 55, at 259 (discriminatory
interviewing procedure not cured by employer's articulation of
legitimate reasons for not hiring applicant).
However, age discrimination among applicants who are less
than forty years of age is excusable under the ADEA.
Cf., e.g., Pollard v. Rea Magnet Wire Co., Inc.,
824 F.2d 557, 560 (7th Cir. 1987) (invalidity of oral interview
irrelevant absent proof of discrimination), cited inVitug
v. Multistate Tax Commission, 860 F. Supp. 546, 554 n.8 (N.D.
Bacon v. Secretary of the Air Force, 785 F. Supp. 1255,
1258-60 (S.D. Ohio 1991), aff'd, 7 F.3d 232 (1993), cert.
denied, 114 S.Ct. 1568 (1994).
Id. at 1259.
Id. at 1260.
See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082,
1086 (5th Cir. 1994) (heaviness a legitimate factor for interview
assessment) andJackson v. San Jose Water Co., 872
F.2d 428 (9th Cir. 1989) (interviewee's "garish" eye
makeup and "untidy" hair contradicted her "subjective"
allegation of discrimination). See generally RICHARD JENKINS,
RACISM AND RECRUITMENT: MANAGERS, ORGANIZATIONS, AND EQUAL OPPORTUNITY
IN THE LABOR MARKET 52 (1986) (appearance is the overriding evaluation
factor, regardless of interviewer experience), cited in
Facial Discrimination, supra note 9, at 2052 n.34.
Patterson v. Greenwood School District 50, 696 F.2d
293, 294 (4th Cir. 1982) ("over-domineering personality,"
"nervousness," and "high-pitched voice" acceptable
reasons for rejecting interviewee seeking assistant principal
Smith v. Liberty Mutual Insurance Co., 395 F. Supp.
1098, 1102 (N.D. Ga. 1975), aff'd 569 F.2d 325, 326 (5th
Cir. 1978) (employment denial resulting from use of male effeminacy
or female aggressiveness as proxy for homosexuality permissible
under Title VII).
Wechsler v. R.D. Management Corp., 861 F. Supp. 1153,
1160 (E.D.N.Y. 1994) (no religious discrimination where interviewee
was not "personable" and lacked requisite "enthusiasm"
Bacon, supra note 70, at 1260.
Woodbury County v. Iowa Civil Rights Commission, 335
N.W.2d 161, 165 (Iowa 1983) (no pretext when rejected Chinese-American
woman subjectively described as "reticent" and too "rigid"
to adapt to constant regulatory changes).
Stott v. Contra Costa Community College, 9 F.3d 1553
(9th Cir. 1993) (gender-, age-, and retaliation-based disparate
treatment claims denied where applicant uttered "weak, babbling,
unclear, and vague" answers during subjective interview).
Nanty v. Barrows Co., 660 F.2d 1327, 1334 (9th Cir.
1981) (subjective requirements of articulateness, neatness, and
personableness for delivery truck drivers "present potential
for serious abuse and should be viewed with much skepticism"),
cited in Susan M. Jones, Note, Applying Disparate Impact
Theory to Subjective Employee Selection Procedures, 20 LOY.
L.A.L. REV. 375 n.201 (1987).
Fragante v. City of Honolulu, 888 F.2d 591, 598-99
(9th Cir. 1989) (rejection of Filipino-accented applicant for
clerk post justified by "extensive public contact" and
consequent business necessity), cert. denied, 494 U.S.
Bannerman v. Dept. of Youth Authority, 436 F. Supp.
1273, 1278 (N.D. Cal. 1977) (no adverse impact by gender where
veterans' preference factor added to interview score).
Holder v. City of Raleigh, 867 F.2d 823, 826-27 (4th
Cir. 1989) (favoritism warrantable, despite implausibility of
assertion that black applicant was rejected as untrustworthy,
unless racial animus unequivocal).
Cf. Griggs v. Duke Power Co., 401 U.S. 424,
432, 91 S.Ct. 849, L.Ed.2d 158 (1971) (burden on employer in Title
VII actions to show relationship of selection procedure to job
performance). See alsoSt. Peter v. Secretary of the
Army, 659 F.2d 1133, 1139 (D.C. Cir. 1981) (Nichols, J., dissenting)
(short interview to evaluate "enthusiasm" and salesmanship
too "frivolous" to rebut prima facie case of intentional
Statistical proof may be unnecessary when disparate impact
is unmistakable. CompareMaddox v. Clayton, 764
F.2d 1539, 1556 (11th Cir. 1985) (disparate impact caused by interview
subjectivity demonstrable statistically) withUnited
States v. City of Chicago, 549 F.2d 415, 433-34 (7th Cir.
1977) (subjective requirements lacking job-relatedness-including
good character, moral conduct, and lack of dissolute habits-per
se evidence of disparate impact contravening Title VII).
Connecticut v. Teal, 457 U.S. 440, 442, 102 S.Ct. 2525,
73 L.Ed.2d 130 (1982) (quota hiring achieving "bottom line"
of minority representation not exempt from Title VII challenges).
See alsoGreen, supra note 54, at 805 (subjective
interviews leading to "gut reaction" personnel decisions
have racially disparate impact).
Dummy variables express nominal (i.e., non-numerical) traits
in dichotomous or binary form (e.g., 0 = attribute not present,
1= attribute present), unlike ordinal (i.e., rank order) and continuous
(i.e., capable of arbitrarily small gradations) variables.
All feasibly obtainable descriptive variables should be included
in the statistical model, in order to maximize explained variance
and control for legitimate differences among populations. But
cf.Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct.
3000, 92 L.Ed.2d 315 (1986) (failure to account for all variables
may affect an analyses' probativeness, but not its admissibility).
See also EEOC v. General Telephone Co., 885 F.2d
575, 581 (9th Cir. 1989) (defendant cannot confute discrimination
inference merely by pointing to deficiencies in plaintiff's statistics)
andEEOC v. Sears, Roebuck & Co., 839 F. 2d
302, 360 (7th Cir. 1988) (Cudahy, J., concurring) (statistical
standards for plaintiff's presentations should equally apply to
defendant's rebuttal evidence), cited in Bernard R. Siskind,
Impact of Recent Decisions on Statistical Analysis, in
EMPLOYMENT LITIGATION 1990, at 386 (PLI Litig. & Admin. Practice
Course Handbook Series No. 251, 1990).
Many other statistical approaches are useful in showing adverse
impact. Even a simple demonstration that the interview passage
rate of handicapped and nonhandicapped applicants is conspicuously
different may be satisfactory, although less potent than multiple
Uniform Guidelines, supra note 28, § 50.14.4.D.
This heuristic is known as the "four-fifths" or "80%"
rule. More sophisticated tests can be applied to larger employers
or applicant pools. For example, disparate impact might be proven
by a probability that discrepancies in selection rates occurred
by chance of less than 5 or 0.1 percent (i.e., two-tailed significance
levels of p < .05 or p < .001). These probability levels
correspond respectively to 2 and 3 standard deviations. Castenada
v. Partida, 430 U.S. 482, 496-97 & n.17, 97 S.Ct. 1272,
51 L.Ed.2d 498 (1977). See also Palmer v. Schultz,
815 F.2d 84, 92-97 (D.C. Cir. 1987) (Title VII unlawfulness proven
by discrepancy in promotions by gender of 3.1 standard deviations).
See EEOC Regulations, supra note 2, §§
1630.2(m) (defining qualification),1630.2(n) (handicapped
individuals are otherwise fully qualified if able to perform all
essential functions when reasonably accommodated).
See supra note 6.
Supra note 4, § 12111(8) (qualified individual
with a disability).
See supra note 11, §§ 706 (Definitions),
791 (federal employees [hereinafter Section 501]), 793 (obligations
of federal contractees [hereinafter Section 503]), 794 (nondiscrimination
under federal grants and programs [hereinafter Section 504]).
Cf.Grandison v. U.S. Postal Service, 48 BNA
FEP Cases 38,590 (EEOC 01831136, 1262/C13) (1985) (because of
their extremely subjective nature, character assessments are intrinsically
suspect, requiring a high degree of scrutiny), rev'd on other
grounds, 696 F. Supp. 891 (S.D.N.Y. 1988).
Compare Martha Chamallas, Evolving Conceptions of
Equality under Title VII: Disparate Impact Theory and the Demise
of the Bottom Line Principle, 31 UCLA L. REV. 305, 359 (1983)
(the interview is often used as a stopgap device for affirmative
action and quota-filling) with William L. Corbett, Providing
and Defending Employment Discrimination Claims, 47 MONT. L.
REV. 217, 220 (1986) (the function of many affirmative action
programs is merely to correct statistical imbalances caused by
subjective or invalid selection criteria).
When an ostensively neutral selection procedure, ordinarily
subject to disparate impact analysis, is deliberately used for
non-neutral purposes-such as to meet racial representation
goals or screen out the psychiatrically handicapped-then
disparate treatment analysis may be appropriate.
CompareUniversity of California v. Bakke, 438
U.S. 265, 277, 98 S. Ct. 2733 (1978) (interview ratings used for
special admissions program), cited in Bruce C. French,
A Road Map to Achieve Enhanced Cultural Diversity in Legal
Education Employment Decisions, 19 N.C. CENT. L.J. 219 (1991)
withDoe v. New York University, 666 F.2d 761, 765
(2d Cir. 1981) (denying collegiate readmission to fully rehabilitated
student formerly ejected on psychiatric grounds) and JEANETTE
DISCALA ET AL., NATIONAL ASSOCIATION OF COLLEGE & UNIVERSITY
ATTORNEYS, COLLEGE AND UNIVERSITY RESPONSES TO THE EMOTIONALLY
OR MENTALLY IMPAIRED STUDENT (1992) (how to licitly expel mentally
The latter rejectees are informally denoted "reverse
Chamallas, supra note 96, at 360.
Supra note 84, at 430 (discriminatory preference for
any group, minority or majority, congressionally interdicted).
Supra note 86, at 446-47 (members of groups benefiting
from affirmative action who are nevertheless adversely affected
by facially neutral employment practices have standing on 80%
rule, job-relatedness, and discriminatory pretext grounds).
Equivalent defenses are available against disparate treatment
and pattern or practice actions. See EEOC Regulations,
supra note 2, §§ 1630.15(a) (disparate treatment
defenses), (b)-(c) (disparate impact defenses).
Wards Cove Packing Company, Inc. v. Atonio, 490 U.S.
642, 650, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (proper statistical
comparison is between racial composition of at-issue job and racial
composition of qualified applicants).
Hazelwood School District v. United States, 433 U.S.
299, 311-12, 97 S.Ct. 2736, 53 L.Ed.2d 768 (1977) (defendants
in pattern or practice case alleging discriminatory hiring of
black teachers contended that the geographically relevant applicant
population was suburban St. Louis, and that the central city should
Robinson v. Lorillard Corp., 444 F.2d 791, 798 (4th
Cir.) (compelling business purpose can override racial impact
if no feasible, less discriminatory means), cert. denied,
404 U.S. 1006 (1971).
Title VII, supra note 3, § 703(h). AccordInternational Brotherhood of Teamsters v. United States,
431 U.S. 324, 352, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) (upholding
seniority system perpetuating effects of past racial and ethnic
Cf., e.g., Hopkins, supra note 52, at
237 ("but for" or legitimate, nondiscriminatory motive
Griggs, supra note 84, at 432. The view of the
Equal Employment Opportunity Coordinating Council is that no subjective
or informal selection procedures should be exempt from the Griggs
principle. Bartholet, supra note 19, at 989. See also
David L. Rose, Subjective Employment Practices: Does the Discriminatory
Impact Analysis Apply?, 25 SAN DIEGO L. REV. 63, 77-81 (1988)
(no preferred status for interviews vis-à-vis Griggs)
and Dean C. Berry, The Changing Face of Disparate Impact
Analysis, 125 MIL. L. REV. 1, 50 (1989) (unscored, casual
interviews subject to Griggs).
CompareHamilton v. General Motors Corp., 606
F.2d 576, 580 (5th Cir. 1979) (the test for permissibility of
subjective interviews is "objective fairness") withPayne, supra note 53, at 816 (subjective interviewing
to survey comprehension, alertness, and tidiness approvable).
Carolyn R. Matthews, Comment, Accent: Legitimate Nondiscriminatory
Reason or Permission to Discriminate?, 23 ARIZ. ST. L.J. 231,
SeeShack v. Southworth, 521 F.2d 51, 55 (6th
Cir. 1975) (rejecting nonvalidated, unstructured interview with
no established passing score relying on subjective judgment of
oral examination board).
Hazelwood, supra note 105, at 303. See generallyCastenada, supra note 90, at 496 (prima facie case
of intentional discrimination where minority underrepresentation
exceeds two or three standard deviations on binomial curve).
Cf.United States v. Sheet Metal Workers, 416
F.2d 123, 136 (8th Cir. 1969) (narrative discrimination evidence
touchstone against partially subjective examinations with no established
standards). But cf., e.g.,Brito v. Zia Co., 478
F.2d 100, 1207 (10th Cir. 1973) (intentionally discriminatory
use of subjective evaluations inferred directly from statistical
evidence). See alsoCastenada, supra note
90, at 499 (presumptive discrimination if disproportionality sufficiently
See EEOC v. American National Bank, 652 F.2d
1176, 1198 (4th Cir. 1981) (prima facie discrimination where all-white
interviewers adjudged applicants' ability to communicate, maturity,
personality, physical attractiveness, and neatness).
Cf.Ottaviani v. Univ. of New York, 875 F.2d
365, 374-75 (2nd Cir. 1989) (multiple regression selection procedure
challengeable on grounds of independent variable validity and
statistical impact), cert. denied, 493 U.S. 1021 (1990).
Cf. Pushkin v. Univ. of Colorado, 658 F.2d 1372,
1382 (10th Cir. 1981) (interviewers' reports anecdotally supported
handicap discrimination complaint), cited inAlexander
v. Choate, 469 U.S. 287, 292 n.17, 105 S.Ct. 712 (1985).
See generally Frank L. Schmidt, The Problem of Group
Differences in Ability Test Scores in Employment Selection,
33 J. VOCATIONAL BEHAV. 272, 278-79 (1988) (validities of cognitive
tests range from about .56 for high complexity jobs to about .23
for unskilled jobs);Frank L. Schmidt et al., Job Sample
vs. Paper-and-Pencil Trade and Technical Tests: Adverse Impact
and Examinee Attitudes, 30 PERSONNEL PSYCHOLOGY 187, 193-94
(1977) (job sample tests for metal craft workers have even less
adverse impact on minorities than content-validated written achievement
tests); and John E. Hunter & Frank L. Schmidt, Ability
Tests: Economic Benefits Versus the Issue of Fairness, 21
INDUS. REL. L. J. 293, 296 (1982) (validity of psychomotor ability
tests rises from about .3 to .5 as the hierarchical ladder is
At least one in four Americans experiences an ADA-protected
psychiatric impairment during his lifetime, and more than one
in fifteen suffers from a psychosis. Furthermore, at any point
in time, more than 20% of the population is afflicted with diagnosable
psychiatric ailments, including generalized anxiety (5%), affective
disorders (5-10%), and severe personality disorders (5-10%). See
Darrell A. Regier, One-Month Prevalence of Mental Disorders
in the United States, 45 ARCHIVES GEN. PSYCHIATRY 977, 981
(1988) and Irvin D. Rutman, How Psychiatric Disability
Expresses Itself as a Barrier to Employment, 17 PSYCHOSOCIAL
REHABILITATION J. 15 (1994).
Yet employment of the mentally ill has grown increasingly
problematic, because of deinstitutionalization and reductions
in vocational rehabilitation and social welfare budgets. See
Janet L. Hamilton, New Protections for Persons with Mental
Illness in the Workplace Under the Americans with Disabilities
Act of 1990, 40 CLEV. ST. L. REV. 63 n.10 (1992), citing
RAEL J. ISAAC & VIRGINIA C. ARMAT, MADNESS IN THE STREETS
1-16 (1990) and ANN B. JOHNSON, OUT OF BEDLAM (1992). See
also Symposium, Nancy K. Rhoden, The Limits of Liberty:
Deinstitutionalization, Homelessness, and Libertarian Theory,
31 EMORY L.J. 375, 420 (1982) (employment assistance for psychiatrically
handicapped woefully inadequate); and ALAN A. STONE, LAW,
PSYCHIATRY, AND MORALITY: ESSAYS AND ANALYSIS (1984) (criticizing
patronizing attitude of psychiatrists and the judiciary toward
former mental patients), reviewed by Henry A. Beyer, Diagnosing
Law and Psychiatry, 21 Harv. C.R.-C.L. L. Rev. 305, 322-23
(1986). See generally EEOC Regulations, supra note
2, § 1630.5 (prohibiting limiting, segregating, or classifying
According to labeling theory, whether a mental illness is
organic or functional, its stigmatic effects may be far more handicapping
than any psychophysiological symptomatology. See generally
Kenneth W. Bentz & Wilbert J. Edgerton, The Consequences
of Labeling a Person as Mentally Ill, 6 SOCIAL PSYCHIATRY
29, 29-33 (1971) (attitudes toward mental illness and willingness
to interact with former patients).
EEOC Regulations, supra note 2, § 1630.2(k). More
generally, a "handicapped individual" (A) has a physical
or mental impairment which substantially limits one or more major
life activity, (B) has a record of such an impairment, or (C)
is regarded as having such an impairment. Rehabilitation Act,
supra note 11, § 706(8)(B). "Disability"
is similarly defined in § 3(2) of the ADA, supra note
4, § 12102(2). "Major life activities" include
walking, seeing, speaking, etc. EEOC Regulations, supra
note 2, § 1630.2(i) (1991). Mental impairments which neither
stigmatize nor substantially limit a "major life activity"
are not true "disabilities." Cf.Forrisi v.
Bowen, 794 F.2d 931, 933-34 (4th Cir. 1986), cited in
Robert B. Fitzpatrick, Mental Disabilities and the Americans
with Disabilities Act, Q217 A.L.I.-A.B.A. VIDEO L. REV. 119,
123-24 (1992). See generally EEOC Regulations, supra
note 2, §§ 1630.2(h) (defining impairment), (j) (defining
"[S]ociety's accumulated myths and fears about disability
and diseases are as handicapping as are the physical limitations
that flow from actual impairment." School Board of Nassau
County v. Burdine, 480 U.S. 273, 284, 107 S. Ct. 1123 (1987),
cited in Mary T. Gannon, Comment, Employment Law--The
Americans with Disabilities Act of 1990 and its Effect Upon Employment
Law, 16 J. CORP. L. 315, 325 (1991).
Cf.Collins v. Walters, 1984 WL 590, 35 Empl.
Prac. Dec. P 34,896 (S.D.N.Y. 1984) (perception of personnel officer
that employee was "mentally unstable" suitable consideration
in repeatedly denying promotions, not violating Section 501).
But cf. David L. Rosenhan, On Being Sane in Insane
Places, 179 SCIENCE 250, 250-253 (1973) (psychiatrists unable
to distinguish confederates from genuine psychiatric patients).
Defined in EEOC Regulations, supra note 2, § 1630.9.
Blackwell v. Dept. of Treasury, 830 F.2d 1183, 1184
(D.C.C. 1987) (Nies, J., concurring) (prima facie case of handicap
discrimination requires showing that a reasonable interviewer
should have known of applicant's handicap) andPridemore
v. Rural Legal Aid Society, 625 F. Supp. 1180, 1189 (S.D.
Ohio 1985) (Section 504 not breached absent evidence that interview
committee had actual or constructive notice that cerebral palsic
with psychiatric disabilities was handicapped).
See Amerigo Farina & Robert D. Felner, Employment
Interviewer Reactions to Former Mental Patients, 82 J. ABNORMAL
PSYCHOLOGY 268, 268-272 (1973) (confederate interviewee more likely
to be subjected to unfriendly interviewer reactions and job rejection
when feigning former mental patient status) and Amerigo
Farina et al., Sex and Worker Acceptance of a Former Mental
Patient, 46 J. CONSULTING AND CLINICAL PSYCHOLOGY 887, 887-891
(1978) (confederate interviewees, whether or not feigning ex-mental
patient status, more likely to be rejected if acting nervously).
The FTFI may inherently violate statutes mandating privacy
of health history and circumscribing pre-employment inquiries,
especially among applicants with overt handicaps. See Arnie
Cann et al., Forced Attention to Specific Applicant Qualification:
Impact of Physical Attractiveness and Sex of Applicant Biases,
34 PERSONNEL PSYCHOLOGY 65 (1981). See generally EEOC Regulations,
supra note 2, §§ 1630.13 (prohibited medical
examinations and inquiries), 1630.13(a) (pre-employment examinations
Cf.Kuhn v. Philip Morris U.S.A., Inc., 814
F. Supp. 450, 454 (E.D. Pa. 1993) (since truth is an absolute
defense to allegations of defamation, employer's circulation throughout
community that employee was dismissed because she was "mentally
ill" sanctionable), aff'd, 16 F.3d 404 (3d Cir. 1993),
cert. denied, 114 S.Ct. 2709.
See, e.g., Johnson v. Legal Services of Arkansas,
813 F.2d 893, 895-96, 43 BNA FEP Cases 343 (8th Cir. 1987) (McDonnell
Douglas/Burdine analysis applicable to Section 504 disparate treatment
claims) andPrewitt v. United States Postal Service,
662 F.2d 292, 304-05 (5th Cir. 1981) (befittingness of disparate
impact approach in handicap discrimination disputes). See generally
EEOC Regulations, supra note 2, § 1630.4 (disallowing
employment discrimination against the disabled).
As of 1986, 47 states also forbad handicap discrimination,
yet state employers exercised Eleventh Amendment immunity to exempt
themselves from Section 504 liability prior to the Rehabilitation
Act Amendments of 1986, 42 U.S.C. § 2000d-7, and very few
psychiatric discrimination suits have been victorious in either
federal or state jurisdictions. CompareBalzac v. Columbia
University Press, 495 N.Y.S.2d 45, 46, 114 A.D.2d 792 (N.Y.
App. Div. 1985) (manic-depressive employee fired on day of his
return from hospital stay had standing under New York Human Rights
Law) withBuffolino v. Long Island Savings Bank,
510 N.Y.S.2d 628, 630, 126 A.D.2d 508 (N.Y. App. Div. 1987) (employee
alleging termination for "nervous condition" held not
disabled; therefore, no relief available under New York law).
Likewise, constitutional claims, typically based on the due process
or equal protection clauses of U.S. CONST. amend. XIV, §
1 or U.S. CONST. amend. I, have thus far met with scant success.
See, e.g.,Costner v. United States, 720 F.2d 539,
541 (8th Cir. 1983) (handicap (epilepsy) not suspect classification,
so not entitled to heightened equal protection scrutiny); Brown
v. Sibley, 650 F.2d 760, 765 (5th Cir. 1981) (explicit presumption
of blind employees' unfitness for supervisory positions not due
process violation if blind people previously held such positions);
andDaury v. Smith, 842 F.2d 9, 10, 14, 15 (1st
Cir. 1988) (mandatory psychiatric evaluation of applicant not
violative of Ninth Amendment privacy rights, the Fourteenth Amendment
liberty clause, or First Amendment freedom of speech).
Pushkin, supra note 117, at 1386 (interview
rating of multiple sclerosis victim with psychiatric history inextricably
linked with interviewers' misapprehensions of the problems that
a handicapped physician might face, overstepping Section 504 and
U.S. CONST. amend. XIV, § 1).
Lenihan v. City of New York, 636 F. Supp. 998, 1010-11
(S.D.N.Y. 1985) (discharge of female police officer because of
lack of self-confidence blatantly discriminatory where male officers
rarely disciplined unless discernibly psychotic or violent).
"Surmountable barrier discrimination" occurs when
the handicapped are excluded or disadvantaged by modifiable selection
standards or working conditions. Prewitt, supra
note 131, at 305 n.19. "Insurmountable" impairment barriers,
on the other hand, refer to academic or vocational specifications
which render the disabled individual unqualified, despite all
reasonable accommodations. See generally EEOC Regulations,
supra note 2, § 1630.2(o) (defining reasonable accommodation).
Prewitt, supra note 131, at 307.
Id. at 310.
For example, a witness might testify that expressions like
crazy, nuts, loony, lunatic, insane,
psycho, or psychotic were used derisively or pejoratively
in the facility or classroom; that interviews were sometimes used
to screen out PHIs; or that a dismissal was based on irritability,
incompatibility, instability, or idiosyncrasy.
See "Discriminatory Effects of the Face-to-Face
Interview," supra pp. 12-13.
Such objectives generally require a job analysis, involving
the contributions of personnel specialists, industrial psychologists,
supervisors, and/or preexisting job descriptions. Duane E. Thompson
& Toni A. Thompson, Court Standards for Job Analysis in
Test Validation, 35 PERSONNEL PSYCHOLOGY 865 (1982), cited
in Berry, supra note 109, at 54. The job analysis should
carefully link all interview questions, as well as the elicited
data, to performance imperatives. Arvey, supra note 42,
at 281, cited in Berry, supra note 109, at 54.
See Peter N. Swan, Subjective Hiring and Promotion
Decisions in the Wake of Fort Worth, Atonio, and Price Waterhouse,
16 J.C. & U.L. 553 (1990).
Once an accommodation is requested, whether at the initiative
of a handicapped individual or after consultation with the selector,
the burden of proving unreasonableness or insurmountability remains
with the recruiter, and the handicapped plaintiff may rebut a
selector's unreasonableness defense by demonstrating feasibility.
Prewitt, supra note 131, at 308. Reasonability is
thus contingent upon feasibility. Stated differently, accommodations
must not impose an undue hardship upon recruiters, co-workers
(or fellow students), or taxpayers. SeeTreadwell v.
Alexander, 707 F.2d 473, 478 (11th Cir. 1983). See generally
EEOC Regulations, supra note 2, §§ 1630.15(d)
(defenses to reasonable accommodation), 1630.2(p) (defining undue
hardship). In all events, employers or schools may unilaterally,
voluntarily institute apposite accommodations at any time, even
if not in concordance with applicant or employee wishes (if any).
Such accommodations are not excessively onerous when viewed
in the context of the affirmative action mandates for the handicapped
specified by Sections 501 and 503. See Jana H. Carey et
al., Recent Developments on the Rights of the Handicapped,
Disabled, or Injured Worker, in LITIGATION: 17TH ANNUAL
INSTITUTE ON EMPLOYMENT LAW 1988, at 352 (PLI Litig. & Admin.
Practice Course Handbook Series No. H4-5041, 1988). But cf.Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 65
(1977) (anything more than a "de minimis" duty to accommodate
under Section 504 would constitute undue burden). In the same
spirit, Section 501 is available only to federal employees, Section
503 only offers administrative remedies, and exhaustion of administrative
procedures may be imperative prior to instituting any private
Section 504 action. See Kenneth A. Greene, Burdens of
Proving Handicap Discrimination Using Federal Employment Discrimination
Law: Rational Basis or Undue Burden?, 1989 DET. C.L. REV.
See EEOC Regulations, supra note 2, § 1630.11
Cf.Dick v. United States, 339 F. Supp. 1231,
1235 (D.D.C. 1972) (U.S. CONST. amend. I violated where employee
denied access to psychiatric materials used by employer to conclude
that he suffered from a paranoid "personality pattern disturbance"
and was unqualified for security clearance).
Such resources should be accessible by all applicants, employees,
and students. However, compulsoriness should be a last resort.
ContraVislisel v. Turnage, 759 F. Supp. 1366, 1376
(N.D. Ia. 1990) (finding no discrimination, nor retaliation respecting
previously filed Section 504 complaints, when former mental patient-ostensibly
displaying "nervousness," rambling colloquy, "lackadaisical
attitude," inattentiveness, and proclivity for talking about
pending discrimination appeals-required to undergo psychiatric
evaluation as candidate for Veterans Administration Medical Center
clerical position), aff'd, 930 F.2d 9 (8th Cir. 1991).