Monday, September 27, 2010

District Court Keeps Out Social Framework Evidence in Employment Discrimination Case

Scales-red Thanks to Colin Miller over at the Evidence Prof Blog who has an interesting post up today at Feminist Law Professors about an evidence issue near and dear to my heart in a recent employment gender discrimination class action, E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010) (can't find a non-pay version, sorry). The case involved allegations by the EEOC that the company had engaged in multiple forms of pregnancy and sex discrimination against 58 female employees.

At issue specifically was whether the court should allow in so-called "social framework evidence." As Melissa Hart and I described in our recent article, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), such evidence involves using general research results to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case.  More specifically, in employment discrimination cases, we wrote: "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."

The court excluded the evidence in Bloomberg, and I agree with Colin's thoughts on why the court's reasoning was less than persuasive:

Under Federal Rule of Evidence 702, expert opinion testimony is only admissible if it "will assist the trier of fact to understand the evidence or to determine a fact in issue." The court found that Dr. Borgida's proposed testimony did not meet this standard because, as noted,

“[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition,...“[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”

Really? So, the average juror watches "Modern Family" and fair and balanced news broadcasts, and all of a sudden he or she is an expert on gender stereotypes and discriminatory treatment in the workplace such that testimony from an actual expert in the field wouldn't help the juror? Great! So, I think we can also assume that the average juror watches one of the CSIs, so who needs testimony by crime scene investigators? That testimony wouldn't be helpful! And, I'm sure the average juror watches "Bones," so there should never be any need for testimony by forensic anthropologists.

And while we're at it, I'm certain that most people have seen one of the Law & Orders, so who needs law school and the bar exam? You want to go to marriage counseling? Why? If "Modern Family" is your go-to source for gender discrimination information, why shouldn't it be your source for how to be a good spouse and parent? Heck, double it up with "The Middle," and you get a full hour of great advice a week.

In all seriousness, it seems to me that the United States District Court for the Southern District of New York made three primary assumptions in Bloomberg, none of which are defensible: (1) We live in an enlightened world where everybody recognizes that gender discrimination is prevalent; (2) sitcoms and news reports are reliable sources of information for real world issues; and (3) the average person has a good enough grasp of gender issues such that testimony from a bona fide expert would not be helpful to jurors hearing a gender discrimination case. Do you agree?

You go, Colin. Perhaps other reasons might have existed to keep Dr. Borgida's social framework evidence testimony out, but the court's reasoning here is, well, absurd.


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Colin Miller's post is indeed an amusing and trenchant criticism of what might be termed the "Modern Family" theory of evidentiary relevance. However, I think the post above and, to a lesser extent, Miller's own post paint a distorted picture of the court's decision to exclude Dr. Borgida's testimony. I just read the opinion itself and can report that the court relies principally on its analysis of whether Dr. Borgida's opinion (1) was based on sufficient facts and data, (2) used reliable principles and methods, and (3) reliably applied those methods to the facts. See pp.34-44 of the opinion. The objectionable references to popular culture and general awareness of sex stereotyping occupy the last half of p.45 and part of p.46. I'm inclined to agree with Miller's implied conclusion that this portion of the court's reasoning was misguided. But a fair reading of the opinion reveals ample grounds for excluding Dr. Borgida's report and testimony using widely accepted criteria for evaluating expert testimony. Although Professors Hart and Secunda have argued elsewhere that these conventional criteria permit social framework testimony, all but the final two paragraphs of the court's analysis sits comfortably in the range of reasonable interpretations of the Federal Rules of Evidence. To the extent that the post above implies otherwise, I believe that it does a disservice to the very real and serious debate about the value and admissibility of social framework evidence in employment discrimination cases.

Posted by: Rip Verkerke | Sep 28, 2010 6:55:18 PM

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