heir biases on the basis of factors that seem, on the surface, to be unrelated to race. Although this motivation is hidden to Whites, Blacks identify it clearly. Dovidio’s results demonstrated that Blacks pick up Whites’ negative facial cues in situations in which Whites show no overt bias and that Whites remain “clueless” to their own sub- tle behaviors (DeAngelis, 2001; Dovidio, 2001). Mueller, Parcel, and Tanaka (1989) found that homosocial reproduction (the notion that managers promote persons sim- ilar to themselves) operates mainly for Whites. Promotion decisions for Blacks are based on more observable, identifi- able criteria. Racial discrimination may be a factor generat- ing differences in the desires and expectations of racial and ethnic minority workers. Kirby and Jackson (1999) studied 100 Black workers (blue-collar and white-collar) to determine the relationship between perceptions of racial discrimination and traditional organizational attitudes such as job satisfaction, mediated by having either a supervisor of the same or of a different race. Overall, their findings indicate that Black workers who worked for Black supervisors in work groups that were en- tirely or predominantly Black had a more positive experience than those workers with White supervisors. Apparently, the race of the participant’s supervisor did not affect job satisfac- tion, but it was shown to influence perceptions of job opportu- nity and discrimination (Kirby & Jackson, 1999). The results also suggested that it was especially problematic for Blacks in entirely Black work groups to have White supervisors. Job satisfaction was found to be dependent on the racial composi- tion of the participant’s immediate work group (Kirby & Jackson, 1999). Research on the Effects of Racial Discrimination The effects of racism have been documented in various ways. Allport (1954) listed traits that develop in response to being a target of prejudice and discrimination. Steele (1997) has more recently introduced the notion of stereotype threat: the fear of proving that a negative stereotype is true. In a series of experiences, Steele and his associates demonstrated that such fears can lead to lower performance and a desire to disiden- tify with important social domains, such as schooling and other achievement-oriented activities (Steele, 1997; Steele & Aronson, 1995). For example, in one study, when women were told that a difficult math test produced gender differ- ences that replicated women’s underperformance, the women performed worse than men. However, they performed equally to men when the test was described as insensitive to gender differences, even though the same difficult “ability” test was used in both conditions (Steele, 1997). This experiment has 268 Assessing Employment Discrimination and Harassment been replicated in a variety of situations with Blacks and other groups, including White males, who underperformed when told that they were taking a test on which Asians do better than Whites (Steele, 2001). In addition to diminishing people’s performance, stereotyped threat can heighten blood pressure (Steele, 2001). Although the effects of stereotype threat can occur for any group, including White males, it affects women and minorities more strongly because negative stereotypes about them are more relevant to the important domains of schooling and achievement, especially for those invested in performing well (DeAngelis, 2001; Steele, 2001). Recent research on the effects of racism and racial harass- ment has also included a focus on developing scales for mea- suring and quantifying the effects of racial discrimination. A variety of scales have been developed to assess the effects on Black Americans of experiencing racism, including the Racism Reaction Scale, Perceived Racism Scale, Index of Race-Related Stress, Racism and Life Experience Scale– Brief Version, Schedule of Racist Events, and the Perceptions of Racism Scale (Utsey, 1998). Although these scales have not been extensively validated, their development may be of value in assessing the effects of racism, especially where large numbers of individuals have experienced such. Double Jeopardy Research: Race and Gender in Discrimination and Harassment In a study of the relationship between perceived race-based discrimination and sociodemographic factors and job partici- pation and stress, Mays, Coleman, and Jackson (1999) found that these factors differentially affected the employment pat- terns and stress levels of Black women. There is more limited research on the labor force participation of Latinas, and mostly from secondary sources (Yaffe, 1995). Approximately 75% of Latinas report experiencing race or gender discrimi- nation (Yaffe, 1995). Others have noted that the double jeop- ardy for women of color creates some variability in whether a particular experience of discrimination or harassment is considered to be based on race or gender. This may be of special importance in the evaluation of discrimination complaints put forth by those in double jeopardy situations because the plaintiff may not fully report incidents of harass- ment or discrimination if the questioner asks specifically about only one type of harassment. Remediation of Discrimination Expert witnesses are sometimes asked to recommend re- mediation and/or interventions in organizations deemed to have problems with racism, discrimination, and prejudice. For example, a racial discrimination settlement involving Texaco, Inc. called for a court-appointed blue ribbon panel to provide oversight of its reform efforts. Van Duch (2001) reports that similar approaches have been taken in more re- cent settlements involving Mitsubishi (sexual discrimination) and Coca Cola (racial discrimination). Although it is beyond the scope of this chapter to offer other than a brief overview of key issues, it may be helpful to identify social science research that has offered attempts to provide an interface between basic research and program- matic intervention in reducing prejudice and promoting re- spectful interactions. Allport’s (1954) contact theory and the social identity theory developed by Tajfel (Tajfel, Flament, Bilig, & Bundy, 1971) have informed many of the desegrega- tion and integration efforts in schools and workplaces. For example, there is encouraging evidence that mixed-race groups of problem solvers work together effectively under certain conditions, according to laboratory analog studies (Cook, 1985). Actual translation into real programs, however, has proven difficult (Aboud & Levy, 1999). Another body of research has explored social cognitive factors, including the reality that categorization is inevitable and adaptive (Fiske, 1998). Most people have access to a va- riety of social schema and skills, which can be differentially strengthened through training or social influence. Categoriza- tion could apply to both those who hold negative stereotypes as well as those affected by such stereotypes (Fiske, 1998). Graves (1999) reviewed several decades of research and pro- gramming and described two new effective media interven- tions. One of these interventions is based on the notion that vicarious contact through the media can have a more benefi- cial impact when it arouses anger directed at unjustified discrimination. The other intervention is based on the notion that beneficial impact can occur when media produce an emotional identification with outgroup members. The under- lying principle is to engage emotions through empathy (Graves, 1999). A Note on Moving Targets The forensic psychologist is bolstered by familiarity with the research identifying evidence of, effects of, and interventions with discrimination and harassment. Definitions of race, sex, gender, religion, ethnic origin, age, disability, and sexual ori- entation as well as the people who are defined by such criteria play a very different role in the United States today relative to five decades ago, when the Civil Rights Act of 1964 was first enacted. More minority group members hold higher-status and better-paying jobs, are more often college-educated, and may live in integrated neighborhoods. Prejudice and discrimination Psychological Issues Raised by the Harassment Claim 269 by dominant groups currently range from more virulent to more subtle forms, both in general and in the workplace. Psychologists have a role to play in assessing the presence and effects of those experiences. COMBINING LEGAL ISSUES AND SOCIAL SCIENCE: PSYCHOLOGISTS’ ROLES IN COURT Psychologist’s assessments of individuals making claims concerning discrimination and harassment in employment require the application of social science research in the con- text of the legal issues. This can take place either in the course of providing psychological treatment to individuals claiming discrimination or harassment or as an expert evalu- ator retained for the purpose of providing expert testimony to an adjudicative body (e.g., a jury or administrative law judge). Forensic psychologists recognize that these two types of intervention are significantly different and represent separate roles (Greenberg & Shuman,1997; Committee on Ethical Guidelines for Forensic Psychologists, 1991). The “Specialty Guidelines for Forensic Psychologists” specifi- cally prohibit performing multiple roles in the same case. Additionally, the “Ethical Principles of Psychologists and Code of Conduct,” Standard 7.03 (APA, 1992) raises signif- icant caution for any psychologist considering undertaking dual roles. Lawyers do not always recognize the difference between these roles and may encourage psychologists to provide both forensic expert testimony and psychological treatment in the same case. Although a full discussion of this issue is beyond the scope of this chapter, psychologists not convinced of the inappropriateness of providing expert as- sessment testimony concerning those for whom they provide treatment are encouraged to further review the literature on this topic. Psychologists testifying in litigation on employment ha- rassment or discrimination in their role as experts may pre- sent testimony based on the psychological research about workplaces and psychological processes (i.e., stereotyping, prejudice, workplace culture) or the psychological assess- ment of a particular individual. Although these functions can, to some extent, be separated, they are both forms of expert testimony. Thus, psychologists testifying about both of these issues are filling only one role: the role of expert. Even when a psychologist is asked to address only the psycholegal ques- tion of the extent to which an individual has been psycholog- ically harmed by a particular set of workplace experiences, knowledge about work environments and about the dynamics of discrimination and harassment is an essential part of the required knowledge base. THE ASSESSMENT PROCESS IN EMPLOYMENT DISCRIMINATION AND HARASSMENT In addition to knowledge about those legal and psychological issues previously discussed, individuals performing forensic psychological evaluations in employment discrimination and harassment cases need to have a sound foundation in the process of psychological assessment. This includes a basic understanding of the construction and proper use of psycho- logical tests and assessment tools. The evaluator should also be aware of the psycholegal issues and defenses typically raised in a discrimination or harassment case and the specific assessment tasks or questions raised by them. PSYCHOLOGICAL ISSUES RAISED BY THE HARASSMENT CLAIM When a claim for harassment or discrimination is made, it raises the following questions: (a) whether the alleged events occurred; (b) why the alleged events occurred; and © the na- ture and extent of the effects of the events on the plaintiff. The plaintiff must include in the complaint some variation on the view that the events did occur, that the events occurred because of the employer’s action or inappropriate (i.e., negligent) inac- tion, and that the events had a serious effect on the plaintiff. The defense’s response to a complaint is generally some variation of the position that these events did not occur; that if, indeed, they did occur, they were either caused by the plaintiff, outside of the employer’s knowledge and control, or were the result of some misinterpreted innocent conduct; and that the events resulted in no significant effect on the plain- tiff. In such a complaint situation, the plaintiff must prevail on all three issues to prove a claim, whereas the defense need only prevail on one to disprove a claim. Did It Occur? The first question, addressing whether the events occurred, is primarily an issue for the trier of fact. The Federal Rules of Evidence do not permit expert opinion testimony on the issue of whether a particular party to the complaint is telling the truth. However, especially in sexual harassment cases, the claim is sometimes made that the plaintiff is sufficiently psychologically disturbed (often proposed as a result of a per- sonality disorder ) to render the plaintiff unable to accurately report reality. This argument raises an issue different from the issue of the relative contribution of the alleged conduct versus prior events to any psychological problems experienced by the plaintiff. The issue of plaintiff psychological disturbance 270 Assessing Employment Discrimination and Harassment precluding an accurate assessment of reality has not been supported in the empirical psychological research literature (Fitzgerald, Buchanan, Collinsworth, Magley, & Ramos, 1999). Nonetheless, an evaluation of the possibility of a per- sonality disorder is generally advisable in a forensic psycho- logical examination in sexual harassment cases. Why Did It Occur? The second question, involving whether the plaintiff in some way caused, welcomed, or misinterpreted the behavior sub- ject to complaint, has multiple manifestations. In some cases, the argument is made that the plaintiff caused the harassment or punitive conduct of management by being a poor em- ployee. This is a particularly complex issue to evaluate be- cause many of the behaviors typically cited to demonstrate that an individual is a bad employee (e.g., absenteeism, irri- tability or difficulty getting along with others in the work- place, and poor work performance) are among the predictable and common results of experiencing harassment. An adequate analysis must include consideration of the time line involved (i.e., the relationship in time between the behavior alleged as harassment and the plaintiff’s problem conduct); not necessarily the time of the harassment com- plaint and the plaintiff’s problem conduct. Furthermore, some individuals with poor work performance records tolerate ha- rassment as part of what they perceive to be a quid pro quo bargain, often experienced as “I will put up with your policy- violating behavior if you will put up with mine.” Such indi- viduals complain of long-standing harassing conduct if they are suddenly disciplined for their problem (e.g., tardiness). Ultimately, it is important to remember that the Title VII promise of a nondiscriminatory workplace is not limited to model employees. Thus, when the conduct subject to com- plaint is sufficiently egregious, the work performance of the plaintiff is generally irrelevant. Welcomed or Unwelcomed, Not Voluntary or Coerced? The issue of unwelcomeness is a central requirement for proof of a sexual harassment compliant. As noted before, this is not synonymous with voluntary conduct, although coerced conduct is, by definition, unwelcome. The analysis must in- clude any evidence indicating that the plaintiff welcomed the conduct and any evidence that the plaintiff did not welcome the conduct. Misinterpretation The issue of misinterpretation relates to the legal requirement that the conduct subject to complaint is sufficiently severe to offend and alter the working conditions of a reasonable person similarly situated. This is not a requirement that the hypothetical reasonable person would be as offended or as severely affected as the plaintiff. What is required is that the level of offense could be expected to alter the working condi- tions of that hypothetical reasonable person. Although none of these questions are necessarily the province of the forensic psychologist, a psychologist well- versed in the relevant social psychological literature may offer opinions useful to the trier of fact. These opinions may be developed either as part of the assessment of a partic- ular plaintiff or as part of a more general psychological as- sessment of the workplace and the situation. It is important, however, that such opinions be based on an understanding of the relevant research literature, not simply the clinical expe- rience of the psychological expert. Was There Any Harm? Whether the alleged conduct, if it occurred, significantly af- fected the plaintiff is obviously central to the task of the forensic psychological evaluator. To answer this question, the evaluator must determine whether there is evidence that (a) the plaintiff is currently showing harmful effects from the behavior subject to the complaint, or (b) the plaintiff has previously shown effects from the behavior subject to the complaint that are no longer evident. If there is evidence of harmful or negative effects, the evaluator must further consider the issue of whether this negative effect was caused by the behavior subject to the complaint. As most people have multiple sources of stress in their life, the issue here is often more accurately stated as an assessment of the extent to which any harm was caused by the behavior subject to the complaint. In essence, the evaluator asks, “To what extent was any harm caused by the behavior in question?” In evaluating the extent to which any harm or psychological injury was caused by something other than the behavior that is the subject of complaint, it is important to distinguish between increased vulnerability and actual dysfunction. Legally, an event is the proximate cause of an outcome if that outcome would not have occurred but for this event, even if the event caused the outcome only because of numerous other factors that created conditions of vulnerability, opportunity, or re- silience. The evaluator needs to ask, “Did other stressors or psychological problems leave the plaintiff functioning effectivelybut more vulnerable to the effectsof harassment and discrimination?” Or, by contrast, the evaluator needs to ask, “Was the plaintiff already demonstrating all of the various areasof dysfunction (e.g., having relationshipproblems, health problems, emotional problems, or job-related performance Psychological Issues Raised by the Harassment Claim 271 problems), which may or may not have been exacerbated by the behavior subject to complaint?” Obviously, although psychological tests may be of value in determining whether the plaintiff is currently demonstrating signs of psychological distress, the full evaluation requires additional sources of information. This includes the informa- tion provided by a detailed personal history, a thorough clini- cal interview, a review of collateral documents, and the input of others, either through written statements, transcripts of de- positions, or interviews. The importance of addressing collat- eral documents and input of others in the process provides substantial rationale for the perspective that a treating thera- pist is not an appropriate source of information concerning the psycholegal question of extent of harm caused by the behav- ior subject to the complaint. Chronic or Traumatic Stress? In forensic assessments of discrimination and harassment, it is useful to distinguish between harmful effects of chronic stress and those of traumatic stress. The existence of signifi- cant negative psychological and physical effects from both are well established (Everly, 1989; Kiecolt-Glaser & Glaser, 2001). Thus, the distinction between the two forms of stress is not central to the determination of whether the conditions of work were effected (i.e., the existence of a hostile environ- ment). This distinction may, however, be of significance in evaluating expected recovery. Prior to 1994, it was often quite difficult to demonstrate that discrimination or harassment had resulted in traumatic stress disorder. In 1994, with the publication of the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (American Psychiatric Association, 1994), both the criterion for posttraumatic stress disorder and the accom- panying accepted definition of what constitutes a psycholog- ically traumatic event changed to more accurately reflect the experience of mental health experts working with trauma. Criterion A, the definition of the psychological traumatic event, now reads: A. The person must have been exposed to a traumatic event in which both of the following were present: 1. The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. 2. The person’s response involved intense fear, helpless- ness, or horror. (pp. 427–428) This definition acknowledges the possibility of traumatic psy- chological injury from events in which the physical harm was only threatened. Harassment cases can and do include actual physical assaults, but many harassment cases and most, if not all, discrimination cases deal with events in which no physi- cal assault took place. In many of these cases, the psycho- logical injury is the result of the chronic stress of being demeaned, devalued, and disadvantaged. However, when the behavior subject to complaint results in an experience of sig- nificant threat, the possibility of a traumatic psychological injury exists and should be evaluated. It has been suggested (Baker, 1995) that the traumatic ef- fects of harassment come from the implicit message that the targeted individual or group is not welcome in the workplace and may be forced out, or, in the case of sexual harassment, possibly that the target may be sexually or physically as- saulted. The point at which discriminatory or harassing con- duct becomes threatening may be thought of as an interaction between the actual conduct in its full context and the prior experience of the individual with violence or threatened vio- lence (Fitzgerald, Swan, et al., 1997). Feigning and Malingering In performing a forensic evaluation for employment discrim- ination and harassment issues, it is essential to include an as- sessment of feigning and malingering. Given the potential benefits to the plaintiff of prevailing in a discrimination or harassment complaint, there is more incentive to invent or exaggerate psychological problems than there is for a person seeking only clinical treatment. Unlike a clinical relationship, which exists for the purpose of helping the client or patient, the forensic evaluation exists for the purpose of determining information of use to the trier of fact, regardless of which party in the case has requested the evaluation. At the same time, it is important to remember that, even if a person is ex- aggerating injuries, it does not mean that injuries do not, in fact, exist (Rogers, 1997). Thus, the psychologist, in identify- ing evidence of feigning or malingering, should neither un- derstate nor overstate the meaning and significance of that evidence (see the chapter by Rogers & Bender for a discus- sion on evaluating malingering and exaggeration). Effects of Discrimination/Harassment versus Effects of Lawsuit Another assessment issue for the evaluator to consider is the distinction between the psychological effects of the conduct subject to the harassment or discrimination complaint versus the psychological effects of participation in a lawsuit. The distinction is an important one because the psychological ef- fects of harassment or discriminatory behavior are compens- able, whereas the psychological effects of participation in a 272 Assessing Employment Discrimination and Harassment lawsuit are not. The distinction is further complicated by the fact that frequent defense positions (e.g., the behavior did not occur, the behavior was of no consequence, the behavior was caused by the plaintiff) become a continuation experience of the behavior subject to the complaint itself. A useful heuristic in attempting to make this distinction is to ask the evaluator to consider the degree to which the plaintiff’s stress would be different if the defense had agreed on all points except the issue of the size of the damages. Such a framework separates the emotional effects of extension of the behavior subject to complaint from the emotional effects of dealing with the legal system. This is an issue that may be a topic of both fur- ther judicial clarity and psychological research. Conducting the Assessment The specifics of any given psychological assessment will be somewhat unique to the particular case, and therefore, must be determined on a case-by-case basis. However, there are some general guidelines about the content and conduct of the assessment that should be considered. These are, for the most part, similar to the issues present in any forensic psychologi- cal evaluation. Prior to beginning the assessment, the psychologist should clarify the nature of the assignment with the referring attor- ney. This includes establishing what psycholegal questions or issues the attorney expects the psychologist to explore. It is, of course, not possible to know what one’s opinions will be until after the evaluation is complete, but the scope and na- ture of the task (e.g., assessing degree of injury, exploring reasons for the manner in which the plaintiff dealt with the various alleged instances of harassment, or attempting to es- timate future treatment needs) should be clarified as much and as soon as possible. It is advisable to clarify in writing details of the retention agreement, including fees and sched- ule issues. In practice, forensic psychologists do not perform expert evaluations where payment is contingent on the out- come of the case, for obvious ethical reasons. Prior to the actual clinical evaluation, the forensic psy- chologist generally reviews a variety of documents relevant to the case. These documents include depositions by the plaintiff and other relevant witnesses to the alleged conduct. The evaluator also reviews available medical records, includ- ing therapy records. Other material of value includes the em- ployment records of the plaintiff. Although most evaluators prefer to review these documents prior to seeing the plaintiff, this will not always be possible. The actual face-to-face assessment process must begin with obtaining the informed consent of the person being eval- uated. That includes providing the individual with sufficient information to understand the process and what will happen to the results of the evaluation. It is not the task of the forensic evaluator to force an assessment on an unwilling participant. The forensic evaluator should document the informed consent in writing before conducting the examination or testing of the plaintiff. The selection of psychological tests and structured inter- views should be based on their relevance to the psycholegal issues in question. Selection should include full considera- tion of the appropriateness of the test for the given plaintiff, based on language, culture, and standardization sample is- sues. Selection also should be based on adequate evidence that the plaintiff has the necessary language skills to compre- hend the test fully. The administration should be in compli- ance with the administration procedures outlined in the test manual. Any nonstandard use or administration should be identified and its limitations fully disclosed. Although the ac- tual tests used in evaluations may vary, based on a variety of factors, the question of whether the plaintiff or the defense in a legal action has retained the expert is not a legitimate basis for determining the appropriate assessment tools. Empirical or actuarially constructed tests, such as the Minnesota Multi- phasic Personality Inventory 2 (MMPI-2) and the Personality Assessment Inventory (PAI), useful only as sources of hy- potheses, should be administered in the early stages of the assessment and used to inform other aspects of the evalua- tion, especially the interview. Although some plaintiff attorneys oppose psychological testing on the grounds that it is overly intrusive into client privacy, properly selected psychological tests, administered and interpreted by knowledgeable forensic psychologists, can be of significant value in the evaluation process. As noted previously, the actual tests used necessarily vary from case to case due to a variety of factors, including the nature of the psychological problems the plaintiff reports and the cultural and language background of the plaintiff. A full test battery in an employment discrimination or harassment case generally includes a general personality measure, such as the MMPI-2 or the PAI; a tool to assess the current status or complaints of the plaintiff, such as the Symptom Checklist 90–Revised; and a measure to assess feigning or malingering. Additional as- sessment instruments might be chosen to assess the presence of personality disorders and specific psychological disorders, such as posttraumatic stress disorder, anxiety disorders, and depression, if the plaintiff’s clinical presentation or reported situation suggests that such tests are relevant. In some situa- tions, especially where significant cognitive effects, resulting from psychological reaction to the discrimination or harass- ment, are alleged, a cognitive or neuropsychological test may be appropriate. Future Directions and Conclusions 273 In selecting psychological tests, the forensic evaluator should seek tests that are appropriate for legal decision making, thereby avoiding tests that are unreliable. Similarly, an evaluator should use only tests for which the evaluator has adequate training in administration and interpretation. Because psychological tests are best used as a source of potential hypotheses, they are best administered early in the assessment. Tests can then be scored and used to provide direction for the assessment process. This practice necessi- tates either seeing the plaintiff on multiple days and/or having the ability to score the tests quickly. Actuarially constructed tests like the MMPI should be given in this way, as they pro- vide only possible hypotheses and cannot be purported as proof of anything. In addition to psychological tests, the forensic evaluator needs to obtain a full history, both of the plaintiff’s life and of the specific employment situation. Various structured infor- mation forms and interviews may be of use in this process. When multiple plaintiffs are involved in a single legal action, it is advisable to use the same protocol, including a structured interview, with all plaintiffs. To the fullest extent possible, all issues being evaluated should be assessed through multiple methods. This process conforms to the best standards of obtaining information and developing conclusions. Although the potential for error of each method of assessment may be high, the probability of error decreases greatly when the same information is obtained and corroborated through multiple independent means. Thus, for example, it may be useful to obtain information about the incidents of alleged harassment through paper-and-pencil measures or structured interviews, unstructured or semistruc- tured interviews, and collateral documentation and interviews. Similarly, psychological dysfunction should be assessed using psychological tests, clinical observations, plaintiff self-report, and collateral documentation. Collateral documentation might include medical records, school records, personnel records, life history information, depositions, collateral interviews, and similar sources of information. FUTURE DIRECTIONS AND CONCLUSIONS Psychological experts have substantial expertise about em- ployment discrimination and harassment. This information is important and helpful to the litigation process and the court system. Expertise is best provided by forensic psychologists trained in assessment and well-versed in the relevant legal is- sues and psychological research. As both legal standards and the psychological research are constantly evolving, no arti- cle, chapter, or book, including this one, can substitute for maintaining familiarity with the field. Psychological experts interested in providing such evaluations are well advised to continue updating their knowledge of the legal standards and the psychological literature addressing these issues. Daubert and Junk Science Undoubtedly, psychologists in this area, like psychologists working in other areas of assessment, will find their work subject to the scrutiny of the standards created by Daubert and its progeny ( General Electric v. Joiner, 118 S.Ct. 512, 1997 and Kumho Tire v. Carmichael, 526 U.S. 137, 1999). Lawyers are likely to seek experts to support the view that any psychological research or testimony they do not like is “junk science” or no science at all. Psychologists are advised to be prepared for such challenges. One useful tool in that preparation is to evaluate any proposed testimony in light of the National Conference of Commissioners on Uniform State Laws Uniform Rule 702 (O’Connor, 2001). This is particu- larly important for those testifying in state courts. Recent Court Decisions and Complaint Policies Recent Supreme Court decisions on sexual harassment, par- ticularly in the Faragher and Ellerth cases, have increased concerns about the nature of an acceptable policy and com- plaint mechanism. As noted previously, in those decisions, is- sued on the same day, the Supreme Court ruled that, when there was no direct adverse job action involved, an affirmative defense against claims of supervisor harassment can be made. This affirmative defense requires that (a) the employer exer- cised reasonable care to prevent and correct promptly any harassment and (b) the plaintiff unreasonably failed to take advantage of the opportunities to prevent, avoid, or correct the harm. There is psychological research relevant to the issues of effective policies, investigation processes, and what consti- tutes a reasonable or unreasonable failure to use an available complaint mechanism. However, further research and better articulation of existing research, written in a way that makes it more accessible to lawyers and the court, would be of value. One important area of research concerns the psychologi- cal and employment effects / consequences of making com- plaints, both generally and, in particular, in work settings. Some research has suggested that those who complain have worse job outcomes than individuals not making complaints (Fitzgerald, Swan, & Fisher, 1995). There is significant need for clearer identification of the conditions under which com- plaint about harassment or discrimination makes the situation worse for an employee and when it prevents or reduces harm. Such research has important legal and policy implications. 274 Assessing Employment Discrimination and Harassment This line of research likely will include more exploration of what factors increase or inhibit retaliation by harassers and others against those individuals making complaints of dis- crimination or harassment. Similarly, additional research on which factors in a com- plaint policy (and the application of the policy) facilitate and inhibit the willingness of targeted individuals to come forward will be of significant value. Significant questions re- main unaddressed in this area: What types of wording in- crease use of complaint policy and procedure? What role do promises of confidentiality or the lack of confidentiality have on willingness to come forward? What role do organizational factors play in shaping the type of policy needed? For exam- ple, does formal wording and a formal procedure in a small company have similar value or effect as it does in a large company? Psychological research can play an important role in providing employers, policymakers, and the courts infor- mation on these questions. Oncale and Equal Opportunity Harassers The Oncale decision has established that Title VII requires an individual to be disadvantaged due to membership in an iden- tified class. This decision places the focus on the discrimina- tory nature of the conduct, not just the egregious nature of the conduct. Although important, it may unfortunately give rise to certain arguments that require additional psychological com- mentary. The argument that “equal opportunity harassers,” those who use abusive language and / or grope or proposition both men and women, are not violating Title VII creates ur- gency for additional research and better translation of the ex- isting research. Both old and new research that deals with the gendered difference in the experience of the same conduct will be relevant in addressing this area of legal analysis. 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CHAPTER 15 Forensic Evaluation in Americans with Disabilities Act Cases WILLIAM E. FOOTE 279 THE EMPLOYMENT OF PEOPLE WITH DISABILITIES 280 IMPACT OF DISCRIMINATION 281 SUMMARY 281 PSYCHIATRIC/PSYCHOLOGICAL DISABILITIES AND THE ADA 281 Mental Disabilities under the ADA 281 Issues of Conduct 282 Substance Abuse Disorders and the ADA 283 DEALING WITH MENTAL DISABILITIES UNDER THE ADA 284 Depression 284 Learning Disabilities 285 Summary 286 PSYCHOLOGICAL CONSULTATIONS WITH EMPLOYERS AND WORKERS 286 Conceptualizing ADA Disability 286 ADA-Related Employer Consultation: Return to Work 287 Case Example: Return-to-Work Evaluation 289 LITIGATION-RELATED EVALUATIONS AND CONSULTATIONS 292 Failure to Provide Reasonable Accommodation 292 Disparate Treatment and Disparate Impact Evaluations 295 Reprisal for Protected Conduct 295 Disability Harassment and Hostile Work Environment 296 CONCLUSION 296 REFERENCES 297 In July 1990, President George Bush signed the Americans with Disabilities Act (ADA), which became effective two years later. In writing the most sweeping civil rights legisla- tion since the Civil Rights Act of 1964, the framers of this leg- islation intended to assist people with disabilities to obtain jobs and achieve the goal of full functioning in the workplace. The ADA contains provisions that outlaw discrimination against people with disabilities in hiring, training, compensa- tion, and benefits (Bell, 1997). The statute makes it illegal to use employment classifications based on disability or to participate in contracts that have an effect of discriminating against people with disabilities. The statute also indicates that it is unlawful for an employer to use tests or other qualification standards that are not job-related and that have the impact of screening out individuals with disabilities. The ADA protects individuals against retaliation for filing a charge or otherwise being involved in an Equal Employment Opportunity Com- mission (EEOC)-related action. In addition, the law mandates that employers provide “reasonable accommodation” for dis- abled workers who could qualify for jobs if such assistance is provided (Parry, 1996). Although the ADA has yet to fulfill its full promise (Blanck, 1995, 1996; Stefan, 2001; Wylonis, 1999), this re- markable and sweeping legislation has had an impact on many aspects of American life, including public accommoda- tions, telecommunications, and transportation. This chapter focuses on how forensic mental health professionals can in- form decisions made by people with disabilities, employers, and courts as they engage both the opportunities and the con- flicts provided by the ADA. The author wishes to express his appreciation to Susan Stefan for her comments on an earlier draft of the chapter; Marcia Lubar for her re- view of the final draft; Alan Goldstein for his encouragement and editing; Kerri Repa for her work with references; Krisan Smith for her work on the many drafts of the paper and her excellent work on the references; and Cheryl Foote for her support and careful editing. Correspondence may be addressed to William E. Foote, Ph.D., 212 Gold, SW, Suite 202, Albuquerque, New Mexico 87102, 505-243-2777.
