The Situationist

Posts Tagged ‘employment discrimination’

Implicit Bias in Employment Discrimination Litigation

Posted by The Situationist Staff on July 5, 2012

Judge Nancy Gertner and Melissa Hart have recently posted their chapter, titled “Implicit Bias in Employment Discrimination Litigation,” (in Implicit Racial Bias Across the Law, Cambridge University Press, 2012) on SSRN.  Here is the abstract.

Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.

Download the chapter for free here.

Related Situationist posts:

Posted in Abstracts, Implicit Associations, Law | Tagged: , , , | Leave a Comment »

The Situation of Situation in Employment Discrimination Law – Abstract

Posted by The Situationist Staff on April 18, 2009

Red Stapler - Codefin (flickr)Melissa Hart and Paul Secunda have posted their excellent paper, “A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions” (forthcoming 78 Fordham Law Review (2009)) on SSRN.  Here is the abstract.

* * *

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.

* * *

You can download the paper for free here.  For a sample of related Situationist posts, see “Litigating Unconscious Discrimination – Abstract” and “Implicit Bias and Strawmen.”

Posted in Abstracts, Implicit Associations, Law, Legal Theory, Naive Cynicism | Tagged: , , , , , , , | Leave a Comment »

Schema Theory and Lesbian and Gay Identity – Abstract

Posted by The Situationist Staff on September 18, 2008

Todd Brower posted his paper, “Social Cognition ‘At Work:’ Schema Theory and Lesbian and Gay Identity in Title VII” on SSRN, where you can download it for free.  Here’s the abstract.

* * *

Lesbians and gay men are frequent subjects for modern news, politics, and court opinions. From marriage for same-sex couples to Congressional hearings on the military’s “Don’t ask, don’t tell” regulation, decision-makers are setting policy based on their ideas about how gay people are and how they fit into society. But what are those perceptions and how do they interact with law? We ordinarily think of lesbians and gay men as predominantly childless, urban residents of cities like San Francisco, New York, Chicago, or Los Angeles or as inhabitants of the Northeastern or Pacific Coast states. However, data from the 2000 census demonstrate that same-sex couples are located in virtually every county in each of the 50 states. Moreover, many of the states with the highest proportion of same-sex couples raising children are not those with the highest concentrations of lesbian or gay couples; rather they tend to be states in which all couples tend to have children. If these data are unexpected, our surprise is attributable to the dissonance between what we think we know about lesbians and gay men and accurate data.

This phenomenon is less puzzling than it first appears. Psychologists have demonstrated that our perceptions of the world are shaped by schemas, a set of beliefs about people, events or situations that we use as guides in our interaction with these things. Thus, we are able to treat that person or object in what we perceive to be an appropriate manner, that is, consistent with our schema.

We quickly develop models which ascribe a range of characteristics to others corresponding to their skin color, sex, other physical attributes as well as sexual orientation. We can quickly identify some major characteristics of the popular schema about gay people: (1) That lesbians and gay men exhibit “cross-gender” or gender atypical behavior, behavior traditionally associated with the opposite sex. (2) That gay identity is solely about sexual behavior and that lesbians and gay men experience sexuality and sexual activity different from heterosexuals.

This is the crux of schema theory to this article. The schema of lesbians and gay men used by some judges has prevented them from appropriately interpreting legal doctrine and precedent, and has led to anomalous results. Moreover, the relatively non-rigorous nature of schema-matching, which is a feature of both legal and non-legal reasoning, has exacerbated this tendency for inaccuracy and distorted legal doctrine where lesbians and gay men are involved.

Some of the most glaring examples have occurred under the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964, specifically those cases involving same-sex sexual harassment. While significant commentary exists on same-sex sexual harassment, this article differs from that commentary because it does not seek to explain or revise that doctrine through theoretical or jurisprudential constructs. Rather it uses same-sex sexual harassment as one example of how law can employ the insights of social science, particularly cognitive schema models. The article explores how social cognition theories inform and misinform judicial decisions and those of the participants in the cases.

Posted in Abstracts, Law, Legal Theory, Social Psychology, Uncategorized | Tagged: , , , , , , , , | 1 Comment »

%d bloggers like this: