LawInfo Forum

Discriminatory Effects of the Face-to-Face Selection Interview

Lewis Owen Amack

January 15, 1995

INTRODUCTION
The Face-to-Face Screening Interview
Arguments in Support of the Face-to-Face Interview
Arguments Against the Face-to-Face Interview
Invalidity of Subjective Selection Criteria
Discriminatory Effects of the Face-to-Face Interview
Cost-Effective Alternatives to the Traditional Selection Interview
The Psychiatrically Handicapped Applicant
Discrimination Against Psychiatrically Handicapped Applicants

Accommodating Psychiatrically Handicapped Applicants
CONCLUSIONS

INTRODUCTION

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 within6 minority 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 handicapped.
[Endnotes]

The Face-to-Face Screening Interview

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 workforce allocation.
[Endnotes]

Arguments in Support of the Face-to-Face Interview

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.
[Endnotes]

Arguments Against the Face-to-Face Interview

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]

Invalidity of Subjective Selection Criteria

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]

Validation Methods

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.
[Endnotes]

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.
[Endnotes]

Discriminatory Effects of the Face-to-Face Interview

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 practice discrimination.48

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.
[Endnotes]

Disparate Treatment

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

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 individuals.86

One of the best statistical methods for substantiating disparate impact is multiple regression analysis. The dependent or outcome variable (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 selection rating.116

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]

Cost-Effective Alternatives to the Traditional Selection Interview

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.
[Endnotes]

The Psychiatrically Handicapped applicant

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 future.130

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 eliminating PHIs.
[Endnotes]

Discrimination against Psychiatrically Handicapped Applicants

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.
[Endnotes]

Accommodating Psychiatrically handicapped applicants

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 other ratings.

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.
[Endnotes]

CONCLUSIONS

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.


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NOTES

  1. "Objective" phenomena are quantifiable, and afford negligible interpretational latitude to the percipient.

  2. 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).

  3. 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).

  4. 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.

  5. For instance, despite qualifying for high-profile positions, a psychiatrically handicapped individual might only be able to secure a menial livelihood.

  6. 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 applicants.

  7. The terms "selector" and "recruiter" are used interchangeably to refer to interviewers, or more generally to individuals with discretionary authority in selection decisions.

  8. 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).

  9. 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); and Williamson 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 appearance discrimination).

  10. 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).

  11. 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. See Tudyman 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.

  12. 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); and Robbins 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).

  13. The FTFI also rewards applicants for Machiavellianism, disingenuousness, and duplicity.

  14. "Subjectivity" exists when unquantifiable or intangible criteria are assessed, when intuition or judgment is exercised, or when the rater has substantial evaluative flexibility.

  15. 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).

  16. 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.

  17. 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).

  18. 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, and nationality.

  19. 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 also Leisner 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).

  20. Facial Discrimination, supra note 9, at 2052 n.90.

  21. 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 blinded auditions).

  22. Civil Service Act, 5 U.S.C. § 3301.

  23. "Congress shall make no law . . . abridging the freedom of speech . . . " U.S. CONST. amend. I.

  24. 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).

  25. 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) and Rezza v. Dept. of Justice, 698 F. Supp. 586, 587 (E.D. Pa. 1988) (treating compulsive gambling as handicap).

    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 also City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 442-43 (1985) (construing immutability).

  26. 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).

  27. 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).

  28. EEOC Uniform Guidelines on Employee Selection Procedures [hereinafter Uniform Guidelines], 29 C.F.R. § 1607.16 (1990).

  29. Bartholet, supra note 19, at 988.

  30. 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 criteria).

  31. Uniform Guidelines, supra note 28, § 1607.16.Q.

  32. 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) and Schweiker v. Wilson, 450 U.S. 221, 229, 101 S.Ct. 1074 (1981) (suspectness of mental health classifications undecided).

  33. Uniform Guidelines, supra note 28, § 1607.16.C.

  34. Id.

  35. Id. § 1607.16.F. Such studies necessitate quantifying FTFI and vocational performance. Id. § 1607.6(B).

  36. Concurrent validation is typically far less robust than criterion-related validation, particularly if performance predictors are not measured until long after the hiring process.

  37. Uniform Guidelines, supra note 28, § 1607.16.D.

  38. Robert M. Guion, Content Validity in Moderation, 31 PERSONNEL PSYCHOLOGY 205, 208-11 (1978).

  39. 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).

  40. 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.

  41. Uniform Guidelines, supra note 28, § 1607.16.E.

  42. 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).

  43. 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). Contra Fragante 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).

  44. 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).

  45. 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).

  46. 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).

  47. 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).

  48. 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.

  49. 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)).

  50. 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 VII).

  51. A prima facie case is achieved when the plaintiff establishes a genuine issue of material fact, precluding summary judgment.

  52. 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).

  53. Cf. Payne v. Travenol Laboratories, Inc., 673 F.2d 798, 817 (5th Cir. 1982) (subjective interviewing induces intentional discrimination) and Phillips v. Mississippi, 637 F.2d 1014, 1026 (5th Cir. 1981) (subjective personal interviews mask racially motivated executive hiring decisions).

  54. 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 in Lucas v. Dole, 835 F.2d 532, 534 (4th Cir. 1987).

  55. Contra King v. Trans-World Airlines, Inc., 738 F.2d 255, 257 (8th Cir. 1984) (employer must fulfill clear and convincing evidentiary standard (minority rule)).

  56. 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 in Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 1010, 108 S.Ct. 2777 (1988)). But see Verniero v. Air Force Academy School Dist. No. 20, 705 F.2d 388, 392 (10th Cir. 1983) (prima facie case rebuttable with subjective evaluations).

  57. 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.

  58. E.g., Turnes v. AmSouth Bank, 36 F.3d 1057, 1062 (11th Cir. 1994).

  59. 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.

  60. 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" for position).

  61. King, supra note 55, at 257 (prima facie case of discrimination where female applicant asked about pregnancy, childbearing, and childcare).

  62. 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 things").

  63. King, supra note 55, at 257.

  64. 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).

  65. 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).

  66. Id. (personnel administrator's notation on application that interviewee was "too old" probative of ADEA infraction).

  67. 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). Contra King, supra note 55, at 259 (discriminatory interviewing procedure not cured by employer's articulation of legitimate reasons for not hiring applicant).

  68. However, age discrimination among applicants who are less than forty years of age is excusable under the ADEA.

  69. 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 in Vitug v. Multistate Tax Commission, 860 F. Supp. 546, 554 n.8 (N.D. Ill. 1994).

  70. 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).

  71. Id. at 1259.

  72. Id. at 1260.

  73. See Davis v. Chevron U.S.A., Inc., 14 F.3d 1082, 1086 (5th Cir. 1994) (heaviness a legitimate factor for interview assessment) and Jackson 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.

  74. 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 position).

  75. 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).

  76. 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" and "energy").

  77. Bacon, supra note 70, at 1260.

  78. 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).

  79. 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).

  80. 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).

  81. 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. 1081 (1990).

  82. 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).

  83. 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).

  84. 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 also St. 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 gender discrimination).

  85. Statistical proof may be unnecessary when disparate impact is unmistakable. Compare Maddox v. Clayton, 764 F.2d 1539, 1556 (11th Cir. 1985) (disparate impact caused by interview subjectivity demonstrable statistically) with United 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).

  86. 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 also Green, supra note 54, at 805 (subjective interviews leading to "gut reaction" personnel decisions have racially disparate impact).

  87. 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.

  88. 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) and EEOC 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).

  89. 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 regression.

  90. 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).

  91. 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).

  92. See supra note 6.

  93. Supra note 4, § 12111(8) (qualified individual with a disability).

  94. 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]).

  95. 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).

  96. 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).

  97. 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.

  98. Compare University 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) with Doe 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 &AMP; UNIVERSITY ATTORNEYS, COLLEGE AND UNIVERSITY RESPONSES TO THE EMOTIONALLY OR MENTALLY IMPAIRED STUDENT (1992) (how to licitly expel mentally impaired students).

  99. The latter rejectees are informally denoted "reverse discrimination" victims.

  100. Chamallas, supra note 96, at 360.

  101. Supra note 84, at 430 (discriminatory preference for any group, minority or majority, congressionally interdicted).

  102. 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).

  103. 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).

  104. 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).

  105. 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 be disregarded).

  106. 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).

  107. Title VII, supra note 3, § 703(h). Accord International 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 discrimination).

  108. Cf., e.g., Hopkins, supra note 52, at 237 ("but for" or legitimate, nondiscriminatory motive defense).

  109. 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).

  110. Compare Hamilton v. General Motors Corp., 606 F.2d 576, 580 (5th Cir. 1979) (the test for permissibility of subjective interviews is "objective fairness") with Payne, supra note 53, at 816 (subjective interviewing to survey comprehension, alertness, and tidiness approvable).

  111. Carolyn R. Matthews, Comment, Accent: Legitimate Nondiscriminatory Reason or Permission to Discriminate?, 23 ARIZ. ST. L.J. 231, 256 (1991).

  112. See Shack 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).

  113. Hazelwood, supra note 105, at 303. See generally Castenada, supra note 90, at 496 (prima facie case of intentional discrimination where minority underrepresentation exceeds two or three standard deviations on binomial curve).

  114. 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 also Castenada, supra note 90, at 499 (presumptive discrimination if disproportionality sufficiently statistically significant).

  115. 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).

  116. 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).

  117. Cf. Pushkin v. Univ. of Colorado, 658 F.2d 1372, 1382 (10th Cir. 1981) (interviewers' reports anecdotally supported handicap discrimination complaint), cited in Alexander v. Choate, 469 U.S. 287, 292 n.17, 105 S.Ct. 712 (1985).

  118. 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 descended).

  119. 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).

  120. 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 &AMP; 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 disabled individuals).

  121. 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).

  122. 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 substantial limitation).

  123. "[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).

  124. 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).

  125. 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).

  126. Defined in EEOC Regulations, supra note 2, § 1630.9.

  127. 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) and Pridemore 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).

  128. 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).

  129. 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 or inquiries).

  130. 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.

  131. 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) and Prewitt 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).

  132. 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. Compare Balzac 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) with Buffolino 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); and Daury 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).

  133. 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).

  134. 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).

  135. "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).

  136. Prewitt, supra note 131, at 307.

  137. Id. at 310.

  138. 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.

  139. See "Discriminatory Effects of the Face-to-Face Interview," supra pp. 12-13.

  140. 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.

  141. 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).

  142. 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. See Treadwell 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).

  143. 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. 1053 (1989).

  144. See EEOC Regulations, supra note 2, § 1630.11 (test accommodations).

  145. 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. Contra Vislisel 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).

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