Social Framework Evidence in Employment Discrimination Cases

I’ve just read a fascinating new article by Paul Secunda and Melissa Hart on the use of expert social science testimony in employment discrimination cases.  They report on the conflict, both in the courtroom and in the academy, over the use of so-called “social framework” evidence, which speaks to the tendency of certain workplace policies and practices to promote (or reduce) the impact of stereotyping and bias.  The debate echoes debates elsewhere in the law over the use of science that cannot definitively establish causation, but can only deal in likelihoods or relative increases in risk.  I am reminded of a case I use in teaching the insanity defense, United States v. Lyons, 731 F.2d 243 (5th Cir. 1984), in which the Fifth Circuit bemoans the inability of psychologists to state with certainty whether a crime resulted from a defendant’s inability to control himself.

Entitled “A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions,” the full Secunda-Hart article is available here on SSRN.  You can read the abstract after the break. 

In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decisionmaking and examine the policies and practices operating in a challenged workplace to identify those that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social framework experts, and some courts have agreed that the testimony should not be allowed. Because of the importance of this testimony to ferreting out large-scale discrimination in the workplace, the stakes in the debate over its admissibility are considerable.

The debate has moved recently from the courtroom to the pages of law reviews. In an essay published last fall, three academics argued that social framework testimony as it is commonly accepted by district courts should be categorically disallowed. The arguments for the exclusion of social framework testimony as it is currently presented in employment discrimination class action litigation are fundamentally flawed. A blanket exclusion of this evidence is inconsistent with the Federal Rules of Evidence and Supreme Court precedent on the district courts’ responsibility for assessing the admissibility of expert testimony more generally.

This article puts the debate over social framework expert testimony in context, explaining what the testimony is and the role it has played in employment discrimination litigation, with a particular focus on the way the testimony has been offered in class action suits like Dukes v. Wal-Mart. It explains how the normal rules of evidence law should apply to social framework expert testimony, and under the flexible and permissive standards of the Federal Rules of Evidence, framework testimony offered by a qualified expert should be admissible in many employment class actions. The argument that this kind of evidence should always be excluded is driven as much by a particular view of employment discrimination law as by the governing evidentiary rules. Ultimately, the arguments for blanket exclusion of social framework testimony in these cases can best be understood as part of a political debate and a litigation strategy.

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