This is intentional discrimination based on the employer’s
belief, perhaps based on prejudice, that one group of
workers will not perform well in a particular job. For
example, for many years, employers would not con-
sider women for many hazardous or physically ardu-
ous tasks, such as firefighting, police work, or working
as roustabouts on oil rigs. People of color were not
considered by some employers to embody the “front-
office look,” which would allow them to work as
receptionists or in public relations jobs. In these set-
tings, employees possessing particular characteristics
were not hired or promoted into particular jobs.
In disparate treatment cases, the plaintiff must
establish two elements: (1) that the employee has suf-
fered adverse action by the employer in the form of
being fired, not being hired, or not being promoted and
(2) a similarly situated employee not in that class was
treated more favorably. An alternative legal theory may
be proven by evidence indicating employer conduct
revealing bias against employees of a particular class.
For example, if an employer used a derogatory epithet
in relation to employees of a particular race, a pre-
sumption of disparate treatment may be made.
However, employers have an opportunity to prove
that the employment actions were decided on a legiti-
mate, nondiscriminatory basis. That is, there may be a
valid reason for individuals of a particular class to be
excluded from a job. For example, religious organiza-
tions may exclude individuals not of that faith from a
particular job. People of one gender may not be cho-
sen for a specific job, such as bathroom attendant or
undergarment fitter.
In situations in which the employer is claiming that
there is a legitimate reason for excluding a particular
group of employees from a job, the employee filing
suit must prove that the supposed legitimate basis
offered by the employer is in fact a pretextfor dis-
crimination. That is, although the employer claims a
real-life justification for excluding employees from a
position, the real reason is that the excluded employ-
ees are, for example, male, Jewish, or Korean.Disparate Impact
In other situations, employers may not clearly intend to
discriminate against a class of employees. Employees
may be placed at a disadvantage because of an
employer policy that, on the face of it, should have no
differential effect on individuals in particular groups.
For example, an employer may have a minimum heightrequirement for employees working in an auto parts
depot. Although this requirement would be considered
facially neutral, it would eliminate more women than
men from consideration for the job because women are
typically shorter than men. In another example, a posi-
tion may require individuals to work on Friday nights.
Again, although this job requirement may appear to be
fair, it would disadvantage observant Jews and would
constitute discrimination on the basis of religion.
Disparate impact claims have been brought in cases in
which written tests, such as the Minnesota Multiphasic
Personality Inventory–2 (MMPI–2), or subjective inter-
views were used as a basis for employee selection.
Employers may defend these cases by claiming
“business necessity.” That is, the employer may claim
that the practice is “job-related for the position in ques-
tion and consistent with business necessity” (42 U.S.C.
§ 2000e-2(k)(1)(A)(i)). Courts have been friendly
to these defenses, especially in cases involving the
ADEA, because in age discrimination cases, salary
level often correlates highly with the age of employees.Psychological Consultation
In cases of disparate treatment or disparate impact,
the effects of job actions resulting from the alleged
discrimination are the focus of the forensic psychol-
ogist’s attention. For example, if an employee is
fired from a job because of disparate treatment, the
psychologist would focus on the emotional impact of
forcible unemployment. Research indicates that
being fired may have an impact beyond the eco-
nomic implications. One’s job is often considered
the same as one’s identity, and a fired worker may
feel as though not only a source of income has been
lost but also a source of self-esteem. In losing the
job, the employee may suffer the loss of a social net-
work, which may have been based on relationships
with coworkers. Work provides structure for time,
and the loss of that structure may leave a worker with
little to do with his or her day. Unemployment brings
with it a host of changes on the home front, some-
times necessitating the spouse to go to work, or
changes in the family dynamics because of the loss
of one parent’s bread-winning role. Similar changes
may be expected in situations involving failure to
promote or failure to hire.
In all these cases, the psychologist may employ
evaluation techniques commonly used in evaluations
of individuals who have suffered other losses. A review226 ———Disparate Treatment and Disparate Impact EvaluationsD-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 226