U.S. SUPREME COURT TO WEIGH SOCIOLOGY ISSUE IN WAL-MART DISCRIMINATION CASE – THIS IS A NOVEL USE OF SOCIOLOGY TO DETERMINE CLASS ACTION
By ADAM LIPTAK March 27, 2011
WASHINGTON — When the Supreme Court considers on Tuesday (March 29) whether hundreds of thousands of women can band together in an employment discrimination suit against Wal-Mart, the argument may hinge on the validity of the hotly disputed conclusions of a Chicago sociologist.
Plaintiffs in the class-action suit, who claim that Wal-Mart owes billions of dollars to as many as 1.5 million women who they say were unfairly treated on pay and promotions, enlisted the support of William T. Bielby, an academic specializing in “social framework analysis.”
A central question in the case is whether he should have been allowed, in preliminary proceedings, to go beyond describing general research about gender stereotypes in the workplace to draw specific conclusions about what he called flaws in Wal-Mart’s personnel policies.
“Bielby made a conclusion that he had no basis to make,” said Laurens Walker, one of two University of Virginia professors who coined the term for the analysis almost 25 years ago. “He hasn’t done the research.”
But a brief supporting the plaintiffs from the American Sociological Association said that Professor Bielby’s work explaining how Wal-Mart’s policies may have led to discrimination “is well within our discipline’s accepted methods.”
The sharp arguments are a testament to the central role that social framework analysis has come to play in scores of major employment discrimination cases. Describing what was at stake in such cases, a 2009 article in The Fordham Law Review defending Professor Bielby said the debate was “about the existence of unconscious or implicit bias, the continued seriousness of discrimination as a force in the modern workplace and the appropriate reach of legal remedies to challenge discrimination.”
The Supreme Court is not considering whether Wal-Mart, the country’s largest retailer and biggest private employer, in fact discriminated against women who worked there. For now, the question before the justices in the case, Wal-Mart Stores v. Dukes, No. 10-277, is only whether hundreds of thousands of female workers have enough in common to join together in a single suit.
To make that case, the plaintiffs submitted 120 sworn statements describing what they said was anecdotal evidence of discrimination. They also offered statistics showing what they said were suspicious gaps in pay and promotion between men and women.
Wal-Mart disputes the plaintiffs’ evidence as unrepresentative and unreliable. But even if all of it were established fact, anecdotes and statistics would not be enough. Supreme Court precedent also requires lawyers pursuing a class action to identify the common policy that they say led to unlawful discrimination.
For that, the lawyers for the plaintiffs in the Wal-Mart case turned to Professor Bielby, who teaches at the University of Illinois at Chicago and has testified in scores of similar cases.
Social framework analysis gives courts general information — a framework — drawn from social science. Testimony about the reliability of eyewitness identification can, for instance, serve a valuable role in cases in which prosecutors seek to rely on such evidence.
Professor Bielby, who declined a request for an interview, told the trial court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also reviewed extensive litigation materials gathered by the lawyers in the case.
He concluded that two aspects of Wal-Mart’s corporate culture might be to blame for pay and other disparities. One was a centralized personnel policy. The other was allowing subjective decisions by managers in the field. Together, he said, those factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”
The methodology he used, Professor Bielby explained, was social framework analysis. He cited the seminal work of the two law professors at the University of Virginia, Professors Walker and John Monahan, in the first of 123 footnotes in his 41-page sworn declaration in the case.
But Professors Walker and Monahan contend in their academic writing that Professor Bielby has misused social framework analysis. It is fine, they say, to give courts general information about social science research. But it is improper, they continue, to draw conclusions about the matter in dispute without conducting first-hand research.
“This is a case about a missing link,” Professor Walker said of the Wal-Mart litigation. “You can make the link, if you do the research. But what’s holding this class together is — nothing.”
That position, also set out in a 2008 article in The Virginia Law Review by Professors Walker, Monahan and Gregory Mitchell, has prompted sharp responses.
The Fordham article, by Professors Melissa Hart and Paul M. Secunda, said that Professors Walker and Monahan “seem to suggest that their coining of this phrase gives them a unique right to define the terms and content of expert testimony offered in employment discrimination cases.”
Professors Hart and Secunda added that the third author of the Virginia article, Professor Mitchell, is affiliated with a firm that has provided expert witness services to defendants in employment discrimination suits.
Professor Mitchell said in an e-mail that he was “against bad science whether offered by plaintiffs or defendants” and that his firm’s work “has been for defendants in employment cases because ‘social framework analysis’ has become so popular among the experts used by plaintiffs.”
He added that if his academic critique of social framework analysis was accepted by the Supreme Court, “then the likelihood of me being asked to testify against bad social science experts will go down.”
“And I would welcome that development,” he said.
For their parts, Professor Walker said that he and Professor Monahan “don’t have a dog in this hunt,” adding that “we’re working purely on keeping the methodology proper.”
Laura Beth Nielsen, a sociologist and lawyer who worked on the American Sociological Association’s brief defending Professor Bielby, said “it is tremendously important that jurors and judges understand what we know about the world.” But, she added, “you have to be cautious.”
In the Virginia Law Review article, Professor Walker and his colleagues said Professor Bielby had been far from cautious. In particular, they said, “Dr. Bielby’s report provides no verifiable method for measuring or testing any of the variables that were crucial to his conclusions.”
At his deposition in 2003, Professor Bielby was asked “how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart.”
“I can’t put a number on it,” he replied.
Asked whether he could give any guidance in “a range between, you know, .5 percent of the employment decisions and 99.5 percent,” he said no.
Should the Supreme Court allow social framework evidence like that presented by Professor Bielby, many large employers could be vulnerable to class-action claims, Professor Walker said. “If this is enough,” Professor Walker said of Professor Bielby’s declaration, “this opinion is perfectly transportable.”
In a brief supporting Wal-Mart, lawyers for Costco agreed. Certifying a class in the Wal-Mart case, they said, would mean that “employers with decentralized business models will have few avenues available to escape a Bielby-enabled certification order, other than resorting to surreptitious quotas.”