Page 370 - Discrimination at Work The Psychological and Organizational Bases

14. LAW AND PSYCHOLOGY
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model may require less stringent criteria if it is to eliminate more sub­
tle forms of discrimination from American workplaces. A reexamination
of the notion of intent is warranted by legal scholars. From an HR or IO
perspective, researchers need to be aware of the legal standard for "in­
tent" and incorporate it into research on workplace discrimination to bet­
ter understand illegal discrimination. In addition, research is needed on
the ways in which dual processing works in organizational settings if dis­
criminatory behaviors are to be attenuated in the workplace. Field studies,
not just lab studies, need to be conducted to examine whether workplace
phenomena can moderate the automaticity of cognitive processing and
decision making, as Fiske (1989) suggested. Are there interventions that
an organization can make to reduce the likelihood of stereotype activation
or diminish the effects of stereotypes once activated? Can organizations
alter situational linkages so that automatic behaviors do not occur? Do
self-presentation or self-regulation goals, always present in the workplace,
help to ameliorate automatic evaluations or decisions? Can stereotyping
"habits" be broken through organizational training? Can the setting of
egalitarian goals or values for an organization help to reduce stereotypic
responses? Lab work that may form the basis for field research is already
underway (Kawakami et al., 2000; Monteith, 1993; Monteith, Sherman, &
Devine, 1998; Moskowitz, Gollwitzer, Wasel, & Schaal, 1999). There may
be ways to disrupt automatic prejudice and/or discrimination. However,
even if this is so, the presence of automatically activated attitudes, stereo­
types, and behaviors will always present a challenge to discrimination law.
As the Supreme Court has stated:

It may be customary and quite reasonable simply to delegate employment de­
cisions to those employees who are most familiar with the jobs to be filled
and with the candidates for those jobs. It does not mean, however, that the
particular supervisors to whom this discretion is delegated always act with­
out discriminatory intent. Furthermore, even if one assumed that any such
discrimination can be adequately policed through disparate treatment anal­
ysis, the problem of subconscious stereotypes and prejudices would remain
(Watson v. Forth Worth Bank & Trust, 1988).

Disparate Treatment and the Affirmative Action Defense

Sometimes intentional discrimination can be justified in an even broader
sense. When intentional discrimination has been proven to exist, a vol­
untarily undertaken affirmative action plan can serve as the "legitimate,
nondiscriminatory reason" to meet the employer's burden in a disparate
treatment case. To win his or her case, the burden remains with the plaintiff
to prove that the plan is invalid and therefore a pretext for discrimination