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Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks”

In Dukes v. Wal-Mart, the Ninth Circuit recently upheld the certification of the largest employment discrimination class in history, with more than 1.5 million women employees seeking over $1.5 billion in damages. A crucial piece of evidence supporting class certification came from a sociologist who testified that he performed a “social framework analysis” to evaluate Wal-Mart “against what social science research shows to be factors that create and sustain bias” and found the company wanting. As authority for introducing this analysis, the expert—and the Ninth Circuit—relied on our prior work introducing the concept of social framework to refer to the use of general social science research to provide a context for the determination of specific factual issues in litigation. In this article, we review and recast the procedures originally proposed for apprising juries of general research results to assist in resolving the case before them. We then apply these updated procedures to the expert testimony in Dukes v. Wal-Mart, which promises to be a template for future employment discrimination litigation.

Experience over the past 20 years has shown that that courts will typically allow general contextual information from social science research to be conveyed to the jury by expert witnesses rather than via instructions, as originally envisioned. Where this occurs, we believe it essential that courts limit expert testimony to a description of the findings of relevant and reliable research and of the methodologies that produced those findings, and preclude the witness from linking the general research findings to alleged policies and practices of a specific firm. The landmark class action of Dukes v. Wal-Mart illustrates the centrality of social framework evidence to modern employment litigation, as well as the need for courts to clarify and circumscribe the role of the experts who introduce them.

Doctrinal Feedback and (Un)Reasonable Care

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort’s reasonable care standard demands that we all exercise the prudence of an “ordinary” person. Ambiguous contracts find meaning in the custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has intuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments.

Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more-than-reasonable care—extra tests, unneeded procedures, etc.—so as to steer clear of tort liability’s considerable gray area. If other physicians follow suit, their precautions slowly but surely become the new legal norm, as the reasonable care standard dutifully absorbs the conduct of those it governs. Instead of discouraging wasteful practices, the law feeds them back into doctrine, making overcompliance into mere compliance and ratcheting up the standard of care. Overcautious physicians then have to do even more to steer clear of liability, and the cycle begins anew.

This Article provides a general model of this “doctrinal feedback” phenomenon and then applies it to medical malpractice, where tort’s reasonable care standard has caused an unhealthy and unappreciated feedback effect and has led the law to require an unreasonable level of care. In doing so, it reveals feedback’s surprisingly common formative factors and demonstrates its potential to skew legal norms in a variety of otherwise dissimilar fields.

Preserving Collective-Action Rights in Employment Arbitration

Arbitration has great promise as a vehicle for efficiently and cost-effectively resolving work-related disputes on the merits—and doing so in a way that is more likely than litigation to satisfy all concerned parties. To preserve this promise, judges and policymakers must be vigilant in monitoring the use of arbitration by nonunion employers, lest it become a tool for exacerbating the imbalances of power between workers and management, and, thus, ultimately discredited. Of particular concern are attempts by employers to use predispute arbitration agreements as a means of class-action avoidance. Indeed, the prospect of limiting exposure to large-scale employment litigation through arbitration has given companies a substantial incentive to require their workers, as a condition of employment, to waive the right to sue in court and instead submit claims to binding arbitration.

The proliferation of employer-promulgated arbitration pacts that explicitly or implicitly prohibit multiparty actions likely will bring to the fore a question which courts have yet to confront directly: whether such an agreement, entered into as a precondition of employment, constitutes an unfair labor practice by interfering with the rights of employees to engage in “concerted activities for the purpose . . . of mutual aid or protection,” as guaranteed by Section 7 of the National Labor Relations Act.

Precedent indicates that many employment arbitration agreements are, in fact, vulnerable to unfair-labor-practice charges to the extent that they require employees to surrender their rights to collaborate in dispute resolution as a condition of employment. This Note suggests, however, that employers can preserve a form of mandatory individual arbitration without undermining the policies behind Section 7, offering a solution through which employers and employees can retain the practical benefits of arbitration within a system that allows employees to work in conjunction with one another to resolve claims of mutual concern. Specifically, it advocates that employers embrace transparency in their arbitration systems by instituting procedures that provide for public disclosure of outcomes and the right of participants to present relevant prior awards as persuasive precedent.

Such an approach—which this Note terms “open arbitration”—not only would allow courts to reconcile the “liberal federal policy favoring arbitration agreements” with the objectives of Section 7, but it also would mute many of the criticisms that have led courts to invalidate mandatory ADR agreements.

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