evaluating psychological expertise on questions of social fact: the case of price waterhouse v....

Evaluating Psychological Expertise on Questions of Social Fact: The Case of Price Waterhousev. HopkinsAuthor(s): Jane GoodmanSource: Law and Human Behavior, Vol. 17, No. 2 (Apr., 1993), pp. 249-255Published by: SpringerStable URL: http://www.jstor.org/stable/1394027 .

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Law and Human Behavior, Vol. 17, No. 2, 1993

Evaluating Psychological Expertise on Questions of Social Fact

The Case of Price Waterhouse v. Hopkins

Jane Goodman*

The empirical evidence summarized in the APA amicus brief in Price Waterhouse v. Hopkins was initially presented at trial, subject to quality control measures contained in the Federal Rules of Evidence and an opportunity for cross-examination. This evidence was incorporated into the adjudicative facts determined by the trial judge. These unique circumstances rendered the APA brief more akin to a guild brief than to a typical APA science translation or Brandeis brief. As such, the brief was effective. However, the debate about the brief highlights shortcomings in the existing system for evaluating social science facts presented for the first time by a friend of the court. Recommendations are made to take into account the consensus of experts in the field and adverse findings when presenting empirical evidence for the first time in an appeal brief.

The debate about the American Psychological Association amicus brief submitted to the United States Supreme Court in Price Waterhouse v. Hopkins (1989) prompted a reexamination of the role of amicus briefs as vehicles to present psychological expertise to the court on critical questions of social fact. It is not the purpose of this commentary to question the substantive empirical findings in the APA brief. However, this case raises several questions about the best way to communicate research findings to the court and brings into focus certain shortcomings of the present amicus system for evaluating social facts. Seen in this light, much of the recent controversy is attributable to predictable consequences of the existing system, rather than problems inherent in the APA brief.

* Please address correspondence to Jane Goodman, Roybal Federal Building, 255 East Temple Street, 4th Floor, Los Angeles, CA 90012.

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0147-7307/93/0400-0249$07.00/0 ? 1993 Plenum Publishing Corporation



GOODMAN

Legal Functions of the Psychological Research Findings

The psychological expertise at issue in Price Waterhouse v. Hopkins cuts across functionally distinct categories of social scientific findings traditionally distinguished by the courts, namely adjudicativefacts and legislativefacts (Davis, 1942). These distinctions have practical consequences because (a) the way in which the information is used by the courts depends to some degree on the functional category it fulfills, and (b) the methods available to courts to evaluate the substance of the empirical findings vary according to the legal role which they occupy.

Adjudicative facts are typically those facts determined at the trial level by the fact-finder based on the oral testimony of witnesses, subject to the rules of evidence and an opportunity for cross-examination. The ultimate adjudicative fact, in a gender-based disparate treatment case, such as Price Waterhouse, is whether the employer discriminated against the plaintiff when a specific adverse employment decision was made-in this instance, denial of promotion to partnership. Put another way, adjudicative facts are the facts of the case that pertain to the particular parties in the litigation, derived from testimony concerning the specific events in controversy. Adjudicative facts may be determined from expert testimony presented at trial. The purpose of the expert testimony in Price Waterhouse was to assist the court in determining whether Ms. Hopkins was treated differ- ently from male candidates for promotion in part because of her gender.

Legislative facts, by comparison, are general social facts, including products of psychological expertise, that provide background on existing social science authority used to guide the court in creating or modifying the content of existing law. The goal in presenting legislative facts is to assist the court in making policy determinations that have a bearing on individuals other than the parties engaged in the immediate case in controversy. Legislative facts are most frequently presented to a reviewing court in a written brief on appeal after the trial is over and the adjudicative facts have been determined by the fact-finder, although they may be presented at trial by testifying expert witnesses (Monahan & Walker, 1991).

When presented in a written brief on appeal, legislative facts of which the court may take cognizance are not subject to the rules of evidence designed to ensure the qualifications of experts, nor to those designed to ensure the quality of the expert evidence, such as the Frye (1923) test. A common criticism of empirical findings presented in this way is the absence of any mechanism for quality control. For example, there is no opportunity for opponents to scrutinize the material, to subject it to cross-examination, or to prepare a response highlighting a counter- vailing interpretation or viewpoint.

Psychological Expertise Presented at Trial

On behalf of the plaintiff, Ann Hopkins, testimony summarizing existing psychological research on sex stereotyping was presented orally at trial by a social psychologist, Dr. Susan Fiske. The goal of her review of the literature was to provide a framework or background to better equip the trial judge to make find-

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ings of fact to resolve the specific factual controversy (i.e., to assist the fact-finder in determining whether the promotion denial was caused in part by impermissible gender stereotypes). This aspect of Dr. Fiske's testimony-the general discussion of the research literature on social facts-substantively resembles legislative facts. Because this information was presented at trial, it was subject to cross- examination and the usual safeguards of trustworthiness under the rules of evidence.

In addition to general testimony about the phenomenon of gender stereotypes, Dr. Fiske reviewed the Price Waterhouse partners' comments about the plaintiff and other candidates eligible for promotion and gave an opinion about the possible presence of sex stereotyping, consistent with the findings of sex stereotyping in the empirical literature. She identified comments by the partners that she concluded were influenced by sex stereotypes, but did not claim that any particular reaction by any particular partner was the product of a sex stereotype. This aspect of Dr. Fiske's trial testimony most closely resembles evidence typically offered by a practicing clinical psychologist concerning the specific events and parties to the litigation, which may ultimately comprise the adjudicative facts.

Expert testimony which includes components of both specific and general information, such as that proffered by Dr. Fiske, has been designated "social framework" testimony (Monahan & Walker, 1988). Increasingly, courts are willing to admit testimony at the trial level from an expert who relies on general conclusions from social science research to assist the fact-finder in determining factual issues in a specific case (Goodman & Croyle, 1989; Monahan & Walker, 1991; Vidmar & Schuller, 1989). Accordingly, some scholars have argued that the traditional distinction between legislative facts and adjudicative facts has outlived its usefulness and propose that the term social authority be adopted to replace legislative authority when dealing with social facts, such as those presented by Dr. Fiske to assist the fact-finder.

How did the court respond to the expert testimony? The trial court found that Dr. Fiske was a well-qualified expert who had done extensive research and study in the field of stereotyping. However, because the operation of stereotypes is unconscious, Judge Gesell held that no intentional discrimination was shown by proof that stereotypes influenced the employer's decision. Nonetheless, because the employer consciously adopted a personnel system that encouraged stereotyp- ical evaluations, and took no steps to eliminate sexism, liability was imposed on the employer.

Psychological Expertise Presented after Trial

Psychological expertise summarizing research findings on the phenomenon of gender stereotyping was presented to the U.S. Supreme Court court in Price Waterhouse on appeal, in the form of an APA amicus brief. The brief addressed several concerns particular to the expert in this case, to establish the general acceptance of Fiske's testimony at trial on behalf of the plaintiff and to defend Dr. Fiske from an attack about the basis of her testimony as a research psychologist in comparison with a clinical psychologist. In addition, the brief addressed more general concerns to educate the court about the psychology of stereotyping.

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The goal of the APA brief was not to change the law or to modify legal doctrine by citing literature summarizing research on stereotyping. Thus, this brief must be distinguished from a pure science translation brief presenting legislative facts to the court, such as the APA amicus brief in Maryland v. Craig (1990), the goal of which was to support a modification of existing legal proce- dures for the testimony of certain child witnesses (Goodman, Levine, Melton, & Ogden, 1991).

In fact, the inclusion in the APA amicus brief in Price Waterhouse of material that resembles "legislative facts" that characterize a Brandeis "science translation" brief, is more a consequence of a coincidence of circumstances than any- thing else. Had the substance of Dr. Fiske's testimony at trial not included "social framework" evidence, the nature and role of the APA brief might be indistin- guishable from what Saks (1993, this issue) defines as a "guild brief." Seen in this light, Dr. Fiske's participation in the preparation of the brief after having testified at the trial is considerably less disconcerting, as is the apparent partisan stance of the brief. Despite the superficial blurring of the distinction between a science translation brief and a guild brief, there is little question that the APA's brief has more features in common with an appellate brief submitted by advocates for one party or another than it does with a traditional nonpartisan Brandeis brief. This type of APA amicus brief is perfectly appropriate, given the involvement of the expert from the pretrial stage on behalf of the plaintiff. In essence, my assessment of the APA amicus brief is precisely that it was performing its assigned function. The position advocated by the APA brief is not so much use of psychology in support of a particular party or a particular legal outcome, but use of psychology in establishing elements of proof probative of legal issues that are elusive and extremely difficult to assess, namely, the presence of impermissible discriminatory motives.

Assessing the Influence of APA Amicus Briefs

The efficacy of APA briefs in bringing knowledge to the legal system on critical questions of social fact is somewhat difficult to ascertain. While there are obvious flaws in assessing the merit of an APA brief by counting the number of times the justices make reference in their opinions either to the APA brief or to social science authorities discussed therein (Roesch, Golding, Hans, & Reppucci, 1991), or, alternatively, by counting the number of sentences in the opinions that paraphrase statements in the APA briefs (Goodman et al., 1991), these measures have often been used as indicators of the impact of the brief on the Supreme Court.

Few psychologists will dispute the public interest value or the social utility of the scientific translation of the social facts on gender stereotypes outlined in the APA brief in Price Waterhouse v. Hopkins. However, the Supreme Court opinion in the case made no direct references whatsoever to the APA brief, nor to the authorities cited therein. Does the absence of any direct reflection in the court's opinion warrant a negative inference about the merits of the APA amicus brief in this case? Not necessarily. The foregoing discussion of the haphazard system for

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evaluating the content of Brandeis briefs, and the potential for error or abuse that this creates, renders courts more reluctant to rely on empirical findings presented in an appeal brief than they are to rely on the same findings presented at trial.

Because the unique circumstances in Price Waterhouse offered the Supreme Court a choice between citations to the trial record and citations to the amicus brief, the preference for reliance on the former when referring to gender stereotyping is understandable. No doubt, the admission into evidence by the trial judge of the critical social facts at the trial was instrumental in removing these issues from the center of focus on appeal. The reluctance of the Supreme Court to devote much time or space to general social facts was, in part, attributable to the framing of the issue on review-a technical legal question, on the application of the burden of proof to the evidence. The issue on appeal was not the viability of the evidence presented by the plaintiffs expert to establish liability.1 Neither the qualifications of the expert who testified at trial, nor the substance of her opinions regarding the employment decision in issue, nor the empirical findings that formed the founda- tion of her testimony comprised the focus of the controversy before the Supreme Court on appeal. Nonetheless, the Court's opinion appeared to endorse the per- spectives expressed in the APA brief on all of these issues, without making any explicit references to the APA brief.

First, with respect to Dr. Fiske's qualifications, the Court adopted the arguments outlined in the APA brief, noting that at the trial level, the defendant failed to question Dr. Fiske's expertise or to challenge the legitimacy of her discipline. The Court specifically rejected the efforts of Price Waterhouse to discredit Dr. Fiske's testimony as:

"Gossamer evidence" based only on "intuitive hunches" and of her detection of sex stereotyping as "intuitively divined." Nor are we disposed to adopt the dissent's dis- missive attitude toward Dr. Fiske's field of study and toward her own professional integrity.... Indeed, we are tempted to say that Dr. Fiske's expert testimony was merely icing on Hopkins' cake. (p. 255)

Second, with respect to the substance of Dr. Fiske's testimony, the Court repudiated the arguments of Price Waterhouse that sex stereotyping did not oc- cur, but that if it did, it lacked legal relevance, playing no part in the decision to place Hopkins' candidacy on hold. Writing for the plurality, Justice Brennan suc- cinctly summarized the essence of the psychological expertise germane to the adjudicative or case facts in issues:

According to Fiske, Hopkins' uniqueness (as the only woman in the pool of candidates) and the subjectivity of the evaluations made it likely that sharply critical remarks such as these were the product of sex stereotyping-although Fiske admitted that she could

The issue that the Court reviewed on appeal concerned the appropriate burden of proof when the adverse decision in issue involves mixed motives (i.e., sex-based as well as sex-neutral factors). The Court held that a defendant could avoid liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's gender into account. The 1991 Civil Rights Act overturned this holding, stipulating that when a decision involves mixed motivations, then the act is unlawful, even if the same result would have occurred without the discriminatory motive. Section 107(m), amending 42 U.S.C. 2000e-2 or Section 703 of Title VII.

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not say with certainty whether any particular comment was the result of stereotyping. Fiske based her opinion on a review of the submitted comments, explaining that it was commonly accepted practice for social psychologists to reach this kind of conclusion without having met any of the people involved in the decisionmaking process. (p. 236)

Finally, the justices included some language that addressed the question of whether evidence of stereotyping can establish liability in general, in other discrimination cases. This portion of the opinion reflects consideration of broader policy considerations consistent with those outlined in the APA amicus brief: "In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender" (p. 250). This portion of the holding goes beyond the case facts specific to Price Waterhouse and was not necessary to resolve the issue before the Court on appeal. Whether the Court was more willing to include this holding because it was supported by an official APA amicus brief or because the operative social facts were included in the trial record based on credible expert testimony, subject to the rules of evidence, is worthy of reflection, no matter how obvious the Court believes the phenomenon of stereotyping to be.

Evaluation of Social Facts Presented to the Court

So long as there are opportunities to address the biases or shortcomings of the research findings presented to the court, concerns that the APA amicus briefs may advocate for one position or another, or for one party or another, are less signif- icant. As noted by various scholars, the distinction between science translation and advocacy is often blurred, and the goal of neutral objectivity, while admira- ble, is illusory once a scientist begins evaluating the interpreting findings (Roesch et al., 1991). What mechanisms can feasibly be used to minimize biases or other shortcomings in presenting social facts to the courts in APA amicus briefs? One practical means to impose quality control was suggested by Monahan and Walker (1991) regarding the presentation to any court of social framework evidence. They recommend use of written briefs subject to an evaluative inquiry in four parts: (a) has the research survived the critical review of the scientific community; (b) does it use valid research methods; (c) is it generalizable to the legal question at issue; (d) is it supported by a body of other research? Concerns about the consensus of the scientific community and the duty to raise adverse studies for court to consider are encompassed by the final factor. Perhaps APA will consider applying these criteria to questions of social fact summarized in written briefs that it sub- mits as a friend of the court even through there is as of yet no formal procedural requirement to do so.

REFERENCES

American Psychological Association. (1991). In the Supreme Court of the United States: Price Wa- terhouse v. Ann B. Hopkins: Amicus curiae brief for the American Psychological Association. American Psychologist, 46, 1061-1070.

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Barrett, G. V., & Morris, S. B. (1993). The American Psychological Association's amicus curiae brief in Price Waterhouse v. Hopkins: the values of science versus the values of law. Law and Human Behavior, 17, 201-215.

Civil Rights Act of 1991, summary and full text, Special Supplement, Labor Relations Reporter, Vol. 138, No. 11, November 11, 1991, S8-9.

Fiske, S. T., Bersoff, D. N., Borgida, E., Deaux, K., & Heilman, M. E. (1993). What constitutes a scientific review?: A major retort to Barrett and Morris. Law and Human Behavior, 17, 217-213.

Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Goodman, J., & Croyle, R. T. (1989). Social framework testimony in employment discrimination

cases. Behavioral Sciences & the Law, 7(2), 227-241. Goodman, G. S., Levine, M., Melton, G. B., & Ogden, D. W. (1991). Child witnesses and the con-

frontation clause: The American Psychological Association brief in Maryland v. Craig. Law and Human Behavior, 15, 157-160.

Maryland v. Craig, 110 S. Ct. 3157 (1990). Monahan, J., & Walker, L. (1991). Judicial use of social science research. Law and Human Behavior,

15, 571-584. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Roesch, R., Golding, S. L., Hans, V., & Reppucci, N. D. (1991). Social science and the courts: The

role of amicus curiae briefs. Law and Human Behavior, 15, 146-156. Saks, M. J. (1993). Improving APA science translation briefs. Law and Human Behavior, 17, 235-247.



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