Social Framework Analysis as Inadmissible "Character" Evidence
King, Allan G., Amin, Syeeda S., Law and Psychology Review
I. INTRODUCTION AND SCOPE OF THE ARTICLE
Employment discrimination class actions succeed in being certified only if plaintiffs can demonstrate that the alleged injuries to putative class members have a common source. While allegations of a "pattern and practice" of discrimination are a step in that direction, courts usually require more than mere averments in order to certify a class. Additionally, statistical evidence alone often is insufficient to demonstrate that any disparity between favored and disfavored groups reflects a policy or practice of discrimination that is commonly applied. Plaintiffs therefore frequently turn to social psychologists and other social science experts to testify that seemingly distinct and independent employment decisions emanate from a company-wide culture of discrimination. These experts rely on social framework evidence to weave together decisions of different managers, in various locations, regarding employees in different occupational groups with respect to decisions that run the gamut from hiring to termination, into a coherent "pattern or practice" of discrimination. Thus, in Dukes v. Wal-Mart Stores, Inc., (1) the plaintiffs succeeded in demonstrating that a class of more than a million female employees, supervised by tens of thousands of managers throughout the nation, were subjected to a common culture of stereotyped decision-making, with respect to pay, promotion, and hiring, emanating from a common source. (2)
These social scientists posit the following syllogism to explain why employment discrimination is ubiquitous: (1) dominant social groups have an automatic tendency to invoke negative stereotypes in judging minorities, which operates at an unconscious level; (3) (2) because management of most corporations is populated by members of the dominant social group, stereotyped decisionmaking pervades these corporations; (4) (3) these unconscious stereotypes will infuse the culture of a company, and lead to stereotyped decisions unless particular safeguards are in place to prevent this otherwise inevitable occurrence; (5) and (4) whether the corporate culture is permeated by stereotypical decisionmaking can be determined by gauging the strength and effectiveness of a company's policies and practices aimed at curbing stereotypical decisionmaking. (6)
Employers often seek to exclude this testimony by means of Daubert motions challenging the scientific support for social framework analysis, under Federal Rules of Evidence 702 and 703. However, for several reasons these motions rarely succeed. First, most courts have been reluctant to engage in an extensive Daubert inquiry at the class certification stage of the proceeding. (7) Second, some courts have adopted the view that social framework studies by their nature reflect a scientific methodology that passes muster under Daubert. (8) Finally, social framework studies are strongly tied to the psychological literature regarding "implicit prejudice," a field of research that is generally well-accepted by psychologists and some members of the judiciary. (9) Accordingly, experts who invoke social framework analysis and the implicit prejudice literature to support their opinions generally withstand Daubert attacks.
This article considers the admissibility of social framework evidence from a different perspective. Federal Rule of Evidence 404(a) provides: "Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion...." (10) This rule generally prohibits evidence of an individual's propensity to engage in certain conduct to be used as evidence that this individual engaged in that conduct on a specific occasion. This rule has been applied, for example, to exclude evidence of an individual's violent character to prove that he or she was the aggressor in a particular altercation. …