Article of Interest — A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions by Professors Hart and Secunda

Over the past half-century it has become commonplace for courts and commentators to distinguish two uses of social science in law. Social science is said either to prove ‘legislative facts’ that concern general questions of law and policy, or to prove ‘adjudicative facts’ that pertain only to the case at hand.  The choice of procedures to introduce research findings has depended heavily on the assignment of the research to one of these two categories. In this article, we identify a new generic use of social science in law that is emerging from recent cases. In this third use, research findings presented in court are neither legislative nor adjudicative facts themselves. Rather, empirical information is being offered that incorporates aspects of both of the traditional uses: general research results are used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case. We call this new use of social science in law the creation of  social frameworks. Laurens Walker & John Monahan, Social Frameworks:  A New Use of Social Science in Law, 73 VA.L.REV. 559, 559 (1987).

In their landmark 1987 essay, Social Frameworks, Professors Walker and Monahan christened this social science evidence of the third kind. As University of Colorado School of Law Professor Melissa Hart and Marquette University Law School Professor Paul Secunda note in the introduction to their new essay, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), “For several decades now, courts have accepted social framework evidence in employment litigation, but its use has not been without controversy.”

That controversy originated in the courtrooms, but it has recently spilled over “to the pages of law reviews,” with three academics arguing in a recent essay “that social framework  testimony as it is commonly accepted by district courts should be categorically disallowed,” i.e., “that courts should never let social scientists link general social science findings to an employer’s specific workplace policies unless the proffered expert has conducted his or her own empirical research in that particular workplace.” The thesis of Professors Hart and Secunda in their essay is that

the arguments for categorically excluding such testimony are fundamentally flawed. Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately. When an expert applies her knowledge of studies in her field to an examination of the policies in place at a challenged workplace, the resulting testimony is well within what is permitted by the Federal Rules of Evidence. There is no basis in evidence law for requiring experts to conduct firsthand empirical studies of a particular workplace. Moreover, in the particular context of class action litigation, social framework evidence certainly satisfies the central admissibility criterion of relevance or “fit”–it is “valid for the purpose for which it is offered.”  In large employment class action suits like the landmark Dukes v. Wal-Mart Stores, Inc. gender discrimination litigation, plaintiffs offer social framework testimony at the class certification stage of the litigation to address the issue of whether the plaintiffs share a common question of fact or law that will satisfy federal class action standards. The legal question of commonality is directly addressed by the social scientist’s expertise. Thus, a categorical exclusion of this evidence is inconsistent with the Federal Rules of Evidence and U.S. Supreme Court precedent on the district courts’ responsibility for assessing the admissibility of expert testimony more generally.

This post agrees with the essay by Professors Hart and Secunda and argues that social framework evidence in employment litigation should be admissible to the same extent as syndrome evidence in criminal prosecutions.

First, let’s set the table. Professors Hart and Secunda begin by noting that social framework evidence is used in a variety of contexts:

-In cases such as Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), social framework testimony has been used to establish the likelihood that sex stereotyping influenced employment decisions;

-In cases such as  Jenson Eleventh Taconite Co., 824 F.Supp. 847 (D. Minn. 1993) social framework testimony has been used to prove that acts of harassment at places of employment “could be understood not as a series of isolated events but as part of a general culture of sex stereotyping;” and

-In class action litigation like Dukes v.Wal-Mart, Inc., 227 F.R.D. 137 (N.D.Cal. 2004), “[s]ocial framework testimony has been introduced to explain how certain employer policies operate to introduce the requisite commonality” for class certification.

The authors then present the argument by the three academics that they are attacking. According to those academics,

a social framework expert may only present the results of general studies available within his field. If a party in litigation wishes to have an expert draw any connection between the general research and any facts in the particular case, these authors assert, the expert must do an expensive, time-consuming, and particularized study of the specific workplace.  On this view, the only way a social scientist testifying in an employment discrimination class action could offer opinions about particular workplace policies would be to “conduct an audit study (in which persons of different sexes with matching qualifications pose as applicants for the same job), a controlled experiment into the effects of stereotyping on managerial decisions at [an employer], or an objective observational study of conditions at [an employer].”

The authors then present a number of arguments to establish “the weakness of a categorical argument for exclusion of social frameworks” in employment litigation, such as the following:

-As established in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), Federal Rule of Evidence 702 “is flexible and not subject to categorical exclusions;”

-As established in General Electric Co. v. Joiner, 522 U.S. 136 (1997) (and Federal Rule of Evidence 704(a)), “expert testimony may properly include opinions on facts at issue in the particular case;”

-As recently established in Sprint/United Management Co. v. Mendelsohn, 128 S. Ct. 1140 (2008), “there is no justification for a special rule of appellate scrutiny of district court decisions to admit social framework testimony,” and courts cannot create a blanket rule deeming a certain category of evidence inadmissible under Federal Rules of Evidence 401 and 403.

I agree with all of the above analysis and think that courts also can continue to admit social framework evidence in employment litigation by reference to the way that they have treated syndrome evidence. As Professor Hart and Secunda note, syndrome evidence such as “battered woman’s syndrome evidence” is a type of social framework evidence. And a review of precedent from around the country makes it clear that courts routinely admit such evidence despite questions that some have raised about its reliability. See, e.g., Keith A. Findley, Innocents at Risk:  Advisory Imbalance, Forensic Science, and the Search for the Truth, 38 SETON HALL L. REV. 893, 920 (2008).

I think that a large part of the reason that courts liberally admit such syndrome evidence is because the Supreme Court has ruled that it is constitutionally sound. In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court rejected a petitioner’s argument that the admission of battered child syndrome evidence violated his constitutional rights, concluding that

The demonstration of battered child syndrome “simply indicates that a child found with [serious, repeated injuries] has not suffered those injuries by accidental means.”…Thus, evidence demonstrating battered child syndrome helps to prove that the child died at the hands of another and not by falling off a couch, for example; it also tends to establish that the “other,” whoever it may be, inflicted the injuries intentionally. When offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant even though it does not purport to prove the identity of the person who might have inflicted those injuries….Because the prosecution had  charged McGuire with second-degree murder, it was required to prove that Tori’s death was caused by the defendant’s intentional act. Proof of Tori’s battered child status helped to do just that; although not linked by any direct evidence to McGuire, the evidence demonstrated that Tori’s death was the result of an intentional act by  someone, and not an accident. The Court of Appeals, however, ignored the principle of battered child syndrome evidence in holding that this evidence was incorrectly admitted. For example, the court stated that “[e]vidence cannot have probative value unless a party connects it to the defendant in some meaningful way.”…We conclude that the evidence of prior injuries presented at McGuire’s trial, whether it was directly linked to McGuire or not, was probative on the question of the intent with which the person who caused the injuries acted.

This analysis seems directly applicable to social framework evidence presented in employment litigation, and I think that Federal Rule of Evidence 703 explains why such social framework evidence should be admissible. In relevant part, Rule 703 provides that “[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.” In other words, under Rule 703, experts do not need to conduct the type of audit study mentioned above to offer opinion testimony such as framework testimony.

Indeed, one way for attorneys to lay a proper factual predicate for syndrome evidence is to use hypotheticals. For instance, in State v. Yusuf, 800 A.2d 590, (Conn.App. 2002), the Appellate Court of Connecticut found no problem with Evan Stark, the state’s expert on battered woman syndrome, offering expert opinion testimony based upon the following factual predicate:

During his testimony, Stark also was asked a number of hypothetical questions that tracked the facts that gave rise to the charges against the defendant.  Generally,  with respect to each hypothetical question, Stark  was asked to give his expert opinion whether the hypothetical victim’s conduct was consistent with that of a woman suffering from battered woman syndrome. In each case, Stark concluded that the victim’s conduct as set out in the hypothetical question was indeed consistent with a woman suffering from battered woman syndrome.

If courts generally admit syndrome evidence based upon such factual predicates, I don’t see how they can require audit studies before admitting social framework testimony in employment litigation

-Colin Miller