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. 

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Wisconsin Set to Pass Enhanced Employment Discrimination Law

WISCTV.com is reporting that the State of Wisconsin is close to passing a bill that would permit compensatory and punitive damages for violations of the Wisconsin’s state employment discrimination law:

A bill designed to stiffen penalties for employer discrimination passed the state Assembly on Wednesday, [April 29th].

The bill requires companies that discriminate against their workers to pay compensatory and punitive damages. This is a step above the current law, which lets the state order companies to rehire workers and pay back pay, along with attorney fees. This bill applies to employers who discriminate based on race, gender and other factors.

Democratic supporters say this bill punishes discrimination, while Republican critics say it will increase lawsuits and hurt businesses.The bill now goes to Gov. Jim Doyle for his signature as both the state Senate and Assembly have both approved it.

Actually, this amendment to the Wisconsin law is consistent with what happened to federal Title VII law after passage of the Civil Rights Act of 1991 (CRA of 1991). 

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Wisconsin Court Affirms Arbitration Award of Reinstatement

In a very interesting decision by the Wisconsin Court of Appeals last week, the Court upheld an arbitration award against the large household goods store Menard’s for employment discrimination against, wait for it, its own in-house lawyer.  As reported in the Milwaukee Journal Sentinel,

Menard Inc. must reinstate a woman it fired as vice president and general counsel over a pay dispute, 3rd District judges for the state Court of Appeals said in a decision released Tuesday.

Dawn M. Sands filed a lawsuit in Eau Claire County citing the Equal Pay Act, Title VII of the Civil Rights Act and the Wisconsin Fair Employment Act. She claimed gender-based pay discrimination, asserting that similarly situated male employees were paid more.

A three-person arbitration panel found in her favor and awarded compensatory and punitive damages. The panel also ordered Menard to reinstate Sands with a specific salary and bonus. Menard balked and asked the appellate court to overturn an order by Eau Claire Circuit Judge Paul J. Lenz that had upheld the arbitration panel.

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