The Future of Employment Discrimination Law

Lewis Owen Amack

March 6, 1994

In declining order of importance, the goals of employment discrimination law should be: (1) eliminating all bias and arbitrariness from the workplace, especially with respect to employee selection, promotion, and allocation of benefits; (2) limiting employment decisions to unaccommodable criteria that are essential to job qualification; (3) encouraging individuals to pursue their chosen occupational goals without the risk of encountering employment criteria unrelated to job performance; (4) enabling employers to hire, promote, and reward the best available employees, by focusing only on those selection criteria that are integral to job performance; (5) facilitating the development of more ergonomically and psychosocially accommodative work settings; (6) enhancing occupational mobility, so that labor allocation maximizes social welfare, by enabling every worker to conveniently obtain the employment which optimizes his happiness and productivity; (7) optimizing the efficiency of employment selection procedures; (8) minimizing the social costs of employment discrimination litigation; (9) facilitating optimal resolution of employment discrimination disputes; and (10) eliminating retaliatory treatment toward employees who complain about employment discrimination. Each of these issues will be addressed in sequence.

1. Eliminating employment bias. The only permissible criteria for selection, promotion, or provision of benefits are unaccommodable qualifications which are essential to job performance. Furthermore, behavior tending to harass, intimidate, or stereotype, or which tends to foster quid pro arrangements, whether within the workplace setting or among employees outside of the workplace, should be prohibited. In order to conform to this law, all employers should be obligated to document: (1) all objective criteria used during at least the past ten years in selecting, promoting, and providing benefits for each applicant and employee; (2) essential, unaccommodable qualifications for each job; (3) the methodology for employee selection, promotion, and benefits provision; (4) plans and implemented programs designed to accommodate otherwise fully qualified workers; (5) procedures for handling grievances related to employment discrimination; (6) programs for educating workers about the improprieties of stereotyping, harassment, and quid pro quo arrangements; and (7) programs for ameliorating problems related to employment discrimination, such as group counseling or sensitivity training.

Of the aforementioned documentation requirements, the most important is the job description. An industrial psychologist, management consultant, or other expert may be helpful in delineating essential occupational skills and suggesting feasible accommodations. Along with the categories which are already protected under Title Vll, ADEA, ADA, and PDA, other qualitative factors which should be considered during job design and description are overweightness, physical stature, attractiveness (both ugliness and handsomeness), personality traits, and sexual orientation. None of these factors-nor any other factor-should have any effect upon employment-related decisions unless both documentably unaccommodable and essential to job performance.

Personality traits are of special concern, because employment interviewers often base their personnel decisions upon subjective impressions of the interviewee's demeanor, articulateness, amicability, or other characteristics without considering whether these qualities are relevant to job performance. Additionally, many employers engage in cronyism, nepotism, and favoritism. These practices are typically defended as necessary for obtaining employees who can "get along with others," ensuring a socially cohesive workforce, or projecting a positive public image. There are several fatal flaws with this reasoning: (1) If discrimination against the obese, the ugly, and the physically handicapped is proscribable, then intolerance toward individuals with suboptimal or even repulsive personalities should likewise be impermissible. (2) If employment selection is limited to criteria essential to job performance, and if the methodology for selection based upon those criteria must be objective, then most personality-related criteria cannot be legitimated. (3) Standardized, objective selection methodology and criteria can be utilized for hiring and promotion of high-level managerial and public relations officers where personality factors may be essential to successful job performance. (4) Members of minorities which have traditionally been victims of discrimination, especially the handicapped or those who are accurately or erroneously perceived to be handicapped, tend to be systematically denied employment opportunities because of personality factors which are frequently irrelevant to job performance. For example, a former mental patient may choose not to reveal his history during a job interview, but he may nevertheless feel and appear uncomfortable or nervous, perhaps because he is overwhelmed by the quandary of whether to disclose handicapped status, and by the likelihood of rejection based on his "covert" handicap. (5) Just as employees of the past had to learn to tolerate co-workers who were black, female, or paraplegic, employers should be able to adapt to employees with unconventional or idiosyncratic personalities, if for no other reason than the staggering diversity and creativity that such tolerance would unleash.

2. Limiting employment criteria to the essential and unaccommodable. Many essential tasks can be performed efficiently by a female or a handicapped person if reasonable accommodations are provided. Unfortunately, those few resources which have been invested in accommodations have been prioritized for wheelchair ramp-building. Employers should not be permitted to argue that because they devoted millions of dollars to upgrade walkways, they can avoid the expense of accommodating for other disabilities. If that were the case, then applicants and employees would be inhibited from revealing their handicaps, let alone making accommodation requests, for fear that the employer would rather avoid the expense than abide by anti-discrimination laws.

The burden should be on the employer to prove that (1) selection criteria correspond to essential job qualifications, and (2) accommodation requests, if any, cannot be honored. Applicants and employees will then be less inhibited about revealing their disabilities and suggesting accommodations. As a result, productivity should increase, especially among handicapped workers. The feasibility of physical accommodations can generally be determined straightforwardly, although industrial engineers may be needed for new or unique disabilities. On the other hand, the concept of psychosocial accommodation is virtually unknown and needs more attention. Examples of psychosocial accommodations are (1) an employee with an anti-social behavior disorder is provided the option of work assignments not requiring extensive contact with the public, fellow employees, or supervisors; or (2) an employee with an irascible temperament who requests that her supervisor occasionally remind co-workers not to be offended by her personality eccentricities.

3. Facilitating occupational goal attainment. Two quintessentially American political aphorisms are that every individual should enjoy the liberties requisite to the pursuit of happiness, and that everyone is entitled to equality of opportunity. Ultimately, every individual should be able to attain the occupation which best matches with his interests and potentialities. Illegitimate discriminatory barriers to occupational advancement must be eliminated before such societal goals can be achieved. Furthermore, every individual should have the opportunity to design or customize his job, so that it optimally combines his interests, the employer's needs, and any disability accommodations which will enhance productivity and work satisfaction.

4. Enhancing employment decision-making. Most employers want to hire the most qualified individual for each position. However, they may not be aware that some selection and promotion methods systematically exclude individuals based on factors unrelated to job performance. Many employers need to be educated about discrimination, especially concerning new categories like obesity, ugliness, or personality. Employers benefit in at least two ways from such knowledge: (1) job descriptions are more likely to emphasize productivity-related skills, ergonomic workplace design, and employee satisfaction; and (2) more qualified employees are likely to be hired and promoted, since criteria irrelevant to job performance will be eliminated from selection procedures.

5. Designing ergonomically and psychosocially optimal work environments. Architectural, industrial, and environmental designs for accommodating handicaps should be standardized. Consequently, whenever an employee makes a legitimate accommodation request, its feasibility and practicality can be assessed according to established guidelines and, where appropriate, implementation can be expedited. The procedures for novel or customized accommodation requests should also be standardized. Accommodation specialists, ergonomists, or industrial psychologists could be employed or consulted by local, state, or federal governments to assist employers in providing accommodations by conducting feasibility studies and designing, constructing, and installing accommodations.

6. Enhancing occupational mobility. Occupational mobility should increase if all factors which are nonessential or accommodable are eliminated from hiring and promotion decisions. As a result, employees will be able to more rapidly attain employment which fully matches their skills and interests. The occupational mobility of some individuals may be unaffected or even reduced. On the other hand, occupational mobility should markedly improve among individuals who have traditionally been victims of discrimination. Such individuals will no longer be inhibited from searching for career advancement opportunities, since the risk of employer retaliation will no longer exceed the probability of advancement.

7. Enhancing employment selection efficiency. Personal interviewing will continue for those few positions where psychosocial skills or specific personality traits are a business necessity. In such situations, the selection process should involve at least two independent interviews, and at least two independent evaluators of interview performance. Furthermore, the evaluation instrument should be designed by a qualified psychometrist or industrial psychologist, and pretested to ensure validity and reliability.

Otherwise, the employment interview should be optional, and limited to familiarizing the applicant or employee with the workplace and co-workers. Applicants should only be required to present relevant objective data, which in most cases can be contained in a resume or curriculum vitae. Elimination of the personal interview will (1 ) increase the accuracy and efficiency of candidate selection, (2) reduce discriminatory employment decisions, and (3) save costs.

8. Minimizing social costs of litigation. Actionable discriminatory employment decisions are substantially less likely when the focus is exclusively upon objective occupational requirements and accommodableness, and when the personal interview is restricted to occupations where interpersonal skills or specific personality traits are a business necessity or bona fide occupational qualification. Moreover, applicants and employees are less likely to act litigiously toward employers whose policies are clearly defined, objective, and unbiased.

9. Facilitating resolution of employment-related disputes. The EEOC should expand the use of alternative dispute resolution mechanisms. However, these methods should be binding only upon uncoerced agreement of all concerned parties, and appellate procedures should be readily available.

10. Eliminating employer retaliation. Employer retaliation is a very serious matter, and should be dealt with harshly. Therefore, any claimant who can substantiate employer retaliation should be awarded some combination of treble compensatory damages, punitive damages, court costs, and attorney fees.