What is I-O?

Industrial-organizational (I-O) psychology is the scientific study of the workplace. Rigor and methods of psychology are applied to issues of critical relevance to business, including talent management, coaching, assessment, selection, training, organizational development, performance, and work-life balance.

On the Legal Front

Art Gutman
Florida Intsitute of Technology

Last fall, Allan Church invited me to join the Editorial Board of TIP with the purpose of organizing quarterly contributions on legal issues. I told him it would be both an honor and a pleasure. And so, with this volume, we launch a new column entitled On the Legal Front (one of several titles suggested by Allan). It is our hope that you, our colleagues, will continue to provide us with your perspectives, reactions, and suggestions. Over the years, TIP has featured cutting-edge pieces on salient court rulings and related legal issues. Articles have been written on every major Supreme Court ruling, major lower court cases, and critical issues relating to the teaching and practice of I-O psychology. We hope to enhance this process in the following ways.

First, we would like to solicit contributions. For example, my personal wish list includes a piece on being an "expert witness." I listened to such a presentation at the recent SIOP conference (by Gerald Barrett) and came away convinced that this is stuff every practicing I-O psychologist must have. What issues would you like to visit and whom should we solicit?

Second, also at SIOP, I listened to several poignant reactions to recent legal articles, most notably, on adverse impact, affirmative action, punitive damages, and the ADA. I think those reactions are important and are worth passing on. Feel free to comment on any legal article published in TIP and we will pass these on with or without credit (depending upon your wishes) and without additional editorial commentary.

Third, I often hear "tidbits" of information. For example, a colleague phoned me with (what I considered) a startling piece of news in relation to the Lanning v. Septa ruling (see the October, 1999 TIP article written by Jim Sharf). It seems that several police chiefs attended a legal workshop in which it was recommended that in view of this ruling, they eliminate agility tests from the selection process. Tidbits such as this are, I think, crucial and we would like to assemble, collate, and pass them on.

Fourth, I suspect some of you would like to dig into the legal dialogue but, for some reason, cannot get off your inertia. If you have a piece you have written or would like to write and would like presubmission helpby all means, send it along and we promise you a quick, honest, and confidential response.

In short, please feel free to pass on any idea(s) or topics. You can e-mail me at artgut@aol.com.

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In terms of legal activity in this issue of TIP, Stephen Vodnanovich and Chris Piotrowski address the importance of teaching graduate students about legal issues and whether it is "efficacious" to do so in a separate course (I agree with themwhat do you think?). Bill Verdi addresses the decision by members of the New York State Psychological Association to seek affiliate status with the American Federation of Teachers. He discusses some critical advantages and disadvantages of unionization and asks whether unionization would help (or hurt) I-O psychologists (I'm clueless; what do you think?). Below is a discussion of my own that addresses the Supreme Court's recent ruling in Kimel v Florida Board of Regents, which limits the scope of the Age Discrimination in Employment Act.

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In 1974, Congress exercised its authority under Section 5 of the 14th Amendment to extend coverage of the Age Discrimination in Employment Act of 1967 (or ADEA) to state entities. However, recently, in Kimel v. Florida Board of Regents (2000), the Supreme Court ruled that Congress had exceeded that authority. In the current term,¹ the Supreme Court will also review Alsbrook v. Arkansas (1998), on whether Congress exceeded its Section 5 authority by covering state entities in the Americans with Disabilities Act of 1990 (or ADA). The key issue in such cases is tension between the 11th and 14th Amendments.

¹ Oral arguments in Alsbrook were heard on April 26, 2000. Therefore, by the time the July, 2000 issue of TIP is published, we will likely know the outcome of that case.

The 11th and 14th Amendments

In an early Supreme Court case, a South Carolinian recouped inheritance money from the Georgia state treasury (Chisholm v. Georgia, 1793), prompting an enraged Congress to initiate and the states to ratify the 11th Amendment on sovereign state immunity. The catalyst to the 14th Amendment was failure by the states to enforce the 13th Amendment.² Therefore, the Equal Protection Clause of the 14th Amendment was written to impose on all states the duty to protect individual federal rights. Section 5 of the 14th Amendment authorized Congress to abrogate 11th Amendment immunity, if necessary, and Kimel and Alsbrook are the latest in a series of Supreme Court cases on the groundrules for appropriate expression of that authority.

² The 13th Amendment ended slavery. In modern times, Section 1981, a 13th Amendment statute, has been used in discrimination claims based on race, color, religion, and national origin against private entities.

At stake in any 14th Amendment claim is the level of scrutiny a state must adhere to when expressing authority over its citizens. Three levels are depicted in Table 1. The lowest level (rational basis) applies mainly to privileges (e.g., driving a car), whereas the highest level (strict scrutiny) is reserved for fundamental rights (e.g., free speech, privacy, etc.) and other "suspect" classifications that Congress can justify under its Section 5 authority. The intermediate level (moderate scrutiny), though important in its own right, is less relevant to the present discussion³.

³ Readers interested in issues relating to moderate scrutiny are directed to Supreme Court rulings in Adarand v Pena (1995) and US v Virginia (1996).

Historically, the Title VII classes have long been deemed suspect, meaning that under the 14th Amendment heightened scrutiny applies to state laws for discrimination based on race, color, religion, sex,⁴ and national origin. Furthermore, in Fitzpatrick v. Bitzer (1976), the Supreme Court ruled unanimously that extension of Title VII coverage to state entities in the EEO Act of 1972 was a valid expression of Section 5. In contrast, even prior to Kimel and Alsbrook, the Supreme Court had already ruled that age (Massachusetts Bd. of Retirement v. Murgia, 1976) and disability (Cleburne v. Cleburne Living Center, 1985) are not suspect classifications. Consequently, under 14th Amendment rules, states need only a rational basis for restrictions based on these classifications. The Kimel ruling further protects states from age-based claims and the Alsbrook ruling poses the threat of doing likewise for disability-based claims.

⁴ Under current Supreme Court precedents, moderate scrutiny applies to gender discrimination and strict scrutiny to discrimination based on race, color, religion, and national origin.

The rational basis test is by no means a "slam dunk." For example, in Cleburne, where the Supreme Court ruled that mental retardation is not suspect under the 14th Amendment, the Court also ruled that under the rational basis test, a state law requiring a "special use permit" for a group home for mentally retarded people was irrational. Nevertheless, in relation to the ADEA, the rational basis test has more often been used to support exemptions, including, for example, forced retirement of appointed state judges at age 70 (see Gregory v. Ashcroft, 1991).

The Kimel Ruling

In Kimel, the Supreme Court consolidated the claims of (a) professors at the University of Montevallo, Alabama; (b) professors and librarians at Florida State University (including Daniel Kimel); and (c) a prison guard at the Florida Department of Corrections. The Montevallo plaintiffs claimed that their university evaluation system had an adverse impact on older faculty, as did the Florida State plaintiffs with respect to refusal by the Florida Board of Regents to allocate funds for a previously agreed upon market adjustments for salary increases.⁵ The prison guard claimed age discrimination in promotion. The Supreme Court's ruling in Kimel means that none of these plaintiffs are entitled to a federal remedy against their states under the ADEA.

⁵ These would have been tough claims anyway, as the Supreme Court strongly implied that adverse impact claims are suspect under ADEA rules in Hazen v. Biggens (1993).

The Montevallo district court ruled that (a) Congress had clearly intended for the ADEA to cover state entities, but (b) it had not exercised its Section 5 authority for that purpose. In both Florida cases, the district courts ruled that (a) Congress had used its Section 5 authority to abrogate 11th Amendment immunity, and (b) this authority was valid. Combining these cases into one appeal, the 11th Circuit sided with the Montevallo district court. In a 5-4 decision, the Supreme Court ruled that Congress (a) did clearly express Section 5 authority in 1974 to abrogate 11th Amendment immunity, but (b) in so doing, that authority was exceeded.

As a starter, Justice O'Connor asserted the Supreme Court's role in determining the "substance" of the 14th Amendment's restrictions, stating:

Section 5 of the Fourteenth Amendment is an affirmative grant of power to Congress. ....That power includes the authority both to remedy and to deter the violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. Congress cannot, however, decree the substance of the Fourteenth Amendment's restrictions on the states. The ultimate interpretation and determination of the Amendment's substantive meaning remains the province of the Judicial Branch.

O'Connor then struck down application of the ADEA to the states based on the "congruence and proportionality" test, itself a measure of heightened scrutiny on when Section 5 authority is appropriately expressed. Accordingly, Congress must: (a) Provide evidence of past purposeful discrimination, and (b) apply a proportional remedy. On the issue of congruence , O'Connor ruled that:

Older persons ...unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a "history of purposeful unequal treatment"...Old age does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it.

And on the issue of proportionality, O'Connor ruled that the "substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act."

Prior Case Law

In earlier discrimination cases, the Supreme Court seemed to avoid the Section 5 issue whenever possible. For example, in EEOC v. Wyoming (1983), the Court upheld application of the ADEA to states under the Commerce Clause of the Constitution, an issue related to implied states rights under the 10th Amendment. Interestingly, the Wyoming ruling was a divided one (5-4) in which the Court expressly refused to rule on Section 5 authority in relation to 11th Amendment immunity, even though every lower federal court that had considered the issue up to that time concluded application of the ADEA to states is a valid expression of that authority.

Subsequently, in Atascadero v. Scanlon (1985), a California state hospital challenged application of Section 504 of the Rehabilitation Act of 1973 to state entities. In another 5-4 ruling, the Supreme Court skirted the Section 5 issue, ruling instead that Congress did not state in "unmistakable language" its intention to abrogate 11th Amendment immunity in crafting Section 504, thus barring the lawsuit. The Supreme Court reached the same conclusion in a 5-4 ruling in Dellmuth v. Muth (1989), this time in relation to the Education of the Handicapped Act of 1982 (or EHA).

Then, in Will v. Michigan (1989), Will lodged a Section 1983 equal protection claim hoping for monetary damages from the Michigan State Police. Section 1983 is the major 14th Amendment statue, clearly authorized under Section 5. Nevertheless, in yet another 5-4 ruling, the Supreme Court held that Congress had not unmistakably abrogated 11th Amendment immunity in crafting Section 1983 itself.

More recently, however, the Supreme Court was forced to rule on Section 5 authority in City of Boerne v. Flores (1997). In reaction to Department of Human Resources v. Smith (1990), in which the Supreme Court upheld the right of the State of Oregon to prohibit peyote use for religious purposes, Congress abrogated 11th Amendment immunity in the Religious Freedom Restoration Act of 1993 (or RFRA). Indeed, the RFRA demanded that states justify under strict scrutiny any law burdening free exercise of religion. The Supreme Court struck down the RFRA via the congruence and proportionality test, although this time, the ruling was 7-2.

Conclusions

Since the Alsbrook ruling will likely be available before this issue of TIP is published, I will refrain from predictions regarding application of Section 5 authority to disability claims. Regarding age discrimination, two things must be noted. First, the Kimel ruling means there is no federal remedy for individuous age-based claims, including, for example, failure to hire, promote, or train, harassment, and/or discriminatory discharge. Such claims must rest on applicable state laws.⁶ Second, any class action challenge to a state law, policy, or custom would have to be deemed irrational in order to be struck down (as in Cleburne). On a more general level, Kimel continues the trend of the Supreme Court to limit federal infringement on states' rights.

References

Adarand v. Pena (1995) 115 S.Ct 2097.

Alsbrook v. Arkansas Commission On Law (CA8 1998) 156 F.3d 825.

Atascadero State Hospital v. Scanlon (1985) 472 US 234.

Chisholm v. Georgia (1793) 2 US 40.

City of Boerne v. Flores (1997) 521 US 507.

Cleburne v. Cleburne Living Center (1985) 473 US 432.

Dellmuth v. Muth (1989) 491 US 223.

Department of Human Resources of Oregon v. Smith (1990) 494 US 872.

EEOC v. Wyoming (1983) 460 US 226.

Fitzpatrick v. Bitzer (1976) 427 US 445.

Gregory v. Ashcroft (1991) 501 US 452.

Hazen v. Biggens (1993) 507 US 604.

Kimel v. Florida Board of Regents (2000) 120 S.Ct 631.

Massachusetts Bd. of Retirement v. Murgia (1976) 47 US 307.

US v. Virginia (1996) 116 S. Ct. 2264.

Will v. Michigan Department of State Police (1989) 491 US 58.

⁶ In her Kimel ruling, O'Connor noted that most states have such laws, citing 47 states in particular.

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