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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Can State Disapproval Violate the Establishment Clause?

Last week, the Ninth Circuit affirmed dismissal of a complaint brought by the Catholic League for Religious Liberties and Civil Rights against the San Francisco Board of Supervisors. The Catholic League and two individual plaintiffs complained about a Board resolution condemning Archbishop William Levada for ordering Catholic Charities to stop placing children for adoption with same-sex couples. Slipping in a reference to the Inquisition, the resolution referred to Levada’s actions as hateful and discriminatory and urged Catholic Charities to disobey.

I think that the outcome is correct, but the rationale is wrong.

This isn’t the first time that the Ninth Circuit has been called upon to address a resolution by the Board of Supervisors condemning positions taken by a religious group. In American Family Association v. Board of Supervisors, a divided panel rejected a challenge to a resolution condemning an ad campaign conveying a religious message about homosexuality and promoting “reparative therapy.”

Without exploring the niceties of the various tests for Establishment, the Ninth Circuit’s point is that the message and its purpose are “secular.”

For reasons that I explore here and here and in a forthcoming piece in the William and Mary Bill of Rights Journal, I don’t think that characterization of the message as “secular” withstands scrutiny. 

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Seventh Circuit Case of the Week: Sentencing Judges, You’ve Got Some ‘Splaining to Do

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David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine.  This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later.  At sentencing, counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer.  Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

Not so fast, said the Seventh Circuit last week in United States v. Harris (Nos. 08-1192, 08-1543, & 08-1694).  The court, per Judge Williams, vacated Morrow’s sentence because the sentencing judge failed to address the health argument, which was not an argument “clearly without merit”:

[W]e cannot assure ourselves that the district court weighed Morrow’s health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it.  We therefore remand Morrow’s case for resentencing.

In emphasizing the importance of thorough sentence explanations, particularly to demonstrate that the defendant’s arguments for lenience were at least considered, Harris indicates (contrary to an earlier prediction of mine) that the Seventh Circuit’s important decision in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), is still alive and well.  Sometimes it is nice to be proven wrong. 

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