In the prior post, I mentioned the case of Dukes vs. Wal-Mart, where the trial and appellate courts certified more than a million women in a class-action lawsuit alleging employment discrimination at Wal-Mart stores across the United States. If you are the defendant corporation, you now face the scenario in which millions of individuals allege that they suffered similar harm because of systematic employment practices at your organization.  But, how does a plaintiff offer evidence that these disparate individuals located all across the nation indeed faced the same type of harm because of the actions of thousands of different Wal-Mart managers? The ideal way is to interview every single manager and all the allegedly harmed employees. That, however, would be too costly and impractical. Instead, a plaintiff’s attorney hired an expert witness trained in social science research.

In the Dukes vs. Wal-Mart case, the plaintiffs hired the renowned sociology professor William T. Bielby to perform what is known as a social framework analysis. From what I can gather by reading the expert report, this type of analysis surveys the scientific literature on gender-based discrimination to find the organizational and situational attributes that are likely to give rise to cases of gender stereotyping and discrimination in the workplace.  Once the literature is surveyed, the theoretical propositions about discrimination and stereotyping are applied to the case at hand, i.e. Wal-Mart’s employment practices and routines.In this way, the expert made an informed assertion based on primary evidence related to the case by interviewing managers, reading memos, and analyzing policy manuals, organizational charts and statistics that may suggest unlawful gender-based differences in pay and promotion due to systemic employment practices.

The defense, in this case, vigorously attacked the expert witness’ methodology, claiming that it was speculation, and was never tested to show rigorous causality. An unreasonable inference would be required, the defense argued, to conclude that the social framework analysis actually shows Wal-Mart’s employment practices lead to gender based discrimination. To establish causation, the plaintiff’s expert would have to survey managers to find out if there is a causal link between Wal-Mart’s practices and the managers’ behavior towards women. This, however, was not the case and the plaintiff readily concluded that the purpose of social framework analysis was not to establish actual causation. The plaintiff defended the method by saying:

“Wal-Mart’s insistence that Dr . Bielby quantify the effect of stereotypes is similarly lacking in merit . In his deposition, Dr . Bielby readily admitted that he did not calculate how often stereotypes affect decision-making at Wal-Mart. This is not a flaw that makes his opinion unreliable. Dr. Bielby used social framework analysis to show that Wal-Mart created a system that increased the likelihood of stereotyping, and which provides an explanation for the statistical disparity between men and women in pay and promotions.” (Plaintiffs Opposition to Defendant Wal-Mart Stores, Inc.’s Daubert Motion, to Strike Declaration, Opinion and Testimony of Plaintiffs’ Expert William T. Bielby, Ph.D., at.11).

The plaintiffs also argued that evidence standards required that the expert’s testimony had to be admitted to argue that the class of more than a million women should be certified.They stated:

“Because the Court acts as the gatekeeper, not the fact-finder, the Court is not charged with deciding whether the expert’s opinion is factually correct .’ See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994) (stating that plaintiffs “do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their
opinions are reliable” and that “[t]he evidentiary requirement of reliability is lower than the merits standard of correctness .”). (Plaintiffs Opposition to Defendant Wal-Mart Stores, Inc.’s Daubert Motion, to Strike Declaration, Opinion and Testimony of Plaintiffs’ Expert William T. bielby, Ph.D., at.1-2).

As indicated by the plaintiffs, it ultimately is the responsibility of a jury, and not a judge, to determine the credibility of the expert’s social framework analysis, which suggests, but does not causally establish that Wal-Mart’s practices create a likelihood of gender discrimination. If the expert testimony is admitted and the judge finds it is reliable, the judge may use it, however, as he did in this case, to certify the class and allow the more than one million women to proceed as combined plaintiffs. In this case, the class amounted to a record-breaking number of plaintiffs included in one case.

The U.S. Supreme Court is scheduled to hear Dukes vs. Wal-Mart in the 2011 term.

Can 1.5 million women stand together in a class-action suit to sue Wal-Mart for employment discrimination?

That’s the narrow legal issue that the U.S. Supreme Court recently agreed to decide by reviewing the Ninth Circuit appellate case Betty Dukes v. Wal-Mart. This specific issue gets to the heart of what is known as a class-action lawsuit, which allows bundling the complaints of similarly situated plaintiffs into one lawsuit. In this case, a woman named Betty Dukes has raised allegations the lower trial and appellate Courts found were shared by more than 1 million female Wal-Mart employees. Ms. Dukes and the the other plaintiffs in the suit allege that women who work for Wal-Mart:

(1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and

(2) receive fewer — and wait longer for — promotions to in-store management positions than men.

Whether these plaintiffs were appropriately grouped together and certified as a “class” by the initial trial court in California is the issue that will be examined in the Supreme Court’s pending review. This will be a very important decision that will impact the viability of other class-action lawsuits, and by extension, the liability that American corporations may face in a wide range of future class action lawsuits.

In several upcoming posts, I will examine another issue that is under-analyzed, yet equally important and fascinating: I’ll discuss and analyze the role of expert witnesses who rely on social science research to support allegations made by plaintiffs. These experts are an important source of information that juries rely on to help determine factual matters that determine whether plaintiff wins or loses. For example, a central claim made by the plaintiffs in the Dukes vs. Wal-Mart case is that:

“Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.” (Dukes v. Wal-Mart Stores, Inc., 509 F.3d 1168, at 6147 (2010).

In the next post, I’ll discuss the methods and social science literature that Dr. William T. Bielby, the plaintiff’s expert in the Dukes v. Wal-Mart case, relied on to determine that in his opinion: “Personnel policy and practice at Wal-Mart as implemented in the field has features known to be vulnerable to gender bias”.

Dr. Bielby is a sociology professor, and his expert determination based on a review of social science literature was admissible in court, despite some interesting challenges made by the defendant to discredit the evidence and testimony, which I also will examine in an upcoming post.