social framework testimony in employment discrimination cases

Social Framework Testimony in Employment Discrimination Cases

Jane Goodman, J.D., Ph.D. Robert T. Croyle, Ph.D.

The use of social fmmework testimony by social psychologis& in employment discrimination cases is expanding. After reviewing the kgal background of this type of testimony, we describe its content and discuss an important Title VII cuse of sex discrimination where the testimony played a critical role. We also distinguish social framework testimony from other types of expeti testimony by psychologists.

Since 1975, when the federal rules of evidence were codified by Congress, expert witnesses have been permitted to testify based on a professional opinion as opposed to their personal knowledge of the facts in a case (Graham, 1986). One consequence of this change in the rules has been a steady increase in the use of social scientists as providers of expert testimony in employment discrimination cases. For many years, the primary role of social science experts in employment litigation was to compile statistical proof of the disparate treatment or disparate impact of prohibited employment practices on protected groups (DeGroot, Fienberg, & Kadane, 1986). Most typically, the role of psychologists was limited to providing expert testimony on psychometric issues in cases disputing the validity of personnel selection tests (Loh, 1984; Monahan & Walker, 1985). However, two recent United States Supreme Court decisions paved the way for a new era in the use of psychological experts in employment discrimination litigation. The purpose of this article is to review this newly emerging role of psychological experts and provide examples of its application. We will focus on “social framework” testimony from social psychologists. In some cases, this testimony has assisted in proving that employer judgments and decisions affecting terms or conditions

Jane Goodman, J.D., Ph.D., is a trial attorney and lecturer at University of F’uget Sound Law School. Both Dr. Goodman and Dr. Croyle are research associates in the Department of Psychology at the University of Washington. Please address correspondence and reprint requests to Dr. Croyle at the Department of Psychology, NI-25, Universiry of Washington, Seattle, WA 98195.

Behaviorat Sciences & the Law, Voi. 7, No. 2, pp. 227-241 (1989) Q 1989 John Wiley & Sons, Inc. CCC 0735-3936l89l020221- 15$04.00

228 Goodman and Croyle: Social Framework Testimony

of employment were biased by consideration of prohibited factors such as an employee’s race, gender, age, or handicap. The most important determinants of these biases, negative stereotypes, have long been a focus of study in social psychology and only recently offered as evidence.

LEGAL BACKGROUND

Many federal, state, and local statutes prohibit employment discrimination. For instance, Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” Liabiity in an employment discrimination case can be established under two theones- disparate treatment or disparate impact. Although individual disparate treatment claims require the employee to prove intentional discrimination by the employer, in classwide “pattern and practice” allegations, intent may be inferred from statistical disparities between members of the protected class and the majority group. An employer may respond to the plaintiff‘s prima facie disparate treatment case by articulating legitimate, nondiscriminatory reasons for the disparities, that is, that the practices were justified by business necessity. In response, the plaintiff must prove that this justification is merely a pretext for discrimination.

Disparate impact claims, by comparison, challenge facially neutral employment practices that fall more harshly on the protected than the majority group, and that cannot be justified by necessity. A plaintiff might argue, for example, that a stan- test used for promotion decisions unfairly denies career advancement to Black employees. The employer must show that the challenged practice has a manifest relationship to the employment in question. This burden is essentially similar to that of showing a business justification in a disparate treatment claim. In impact cases, however, the focus is on the effect of the practice, not the employer’s motive. Thus the proof more frequently involves statistical disparities and issues of test validity.

The first area of discrimination law in which psychological experts are likely to play an increasingly important role is disparate impact cases. In 1988, a significant legal development occurred in the case of Clara Watson, a Black bank teller who was passed over four times for promotion to a supervisory position. Each time, a White person was hired. The bank had no formal or precise criteria for evaluating job candidates, relying instead on the subjective judgments of supervisors acquainted with the candidates and the nature of the jobs to be filled. Watson’s attorney wanted to argue that the subjective devices used by the bank had a disparate impact on Black employees regardless of whether the bank intended to discriminate. A split occurred in the Circuit Courts of Appeal as to whether the impact of an employer’s subjective decision-making practices could form the basis of a disparate impact case, or whether this theory was available only in cases in which the impact of an objective practice (such as a standardized test) was at issue. In resolving this matter, the Supreme Court

BEHAVIORAL SCIENCES & THE LAW

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held that subjective judgments and biases that adversely affect an employee’s status because of race, color, religion, sex, or national origin may be analyzed under the disparate impact approach (Watson v. Fort WorrhBank & Trust, 1988). This decision opened the door to expert psychological testimony concerning factors that may influence or bias an employer’s subjective judgments. Testimony from a qualified social psychologist can further fill in the pieces of the puzzle by helping to establish a causal connection between the subjective judgment and the disparate impact.

The second area of law in which the use of psychological experts is likely to increase concerns allegations of a discriminatory workplace environment. A substantial body of judicial decisions and EEOC (Equal Employment Opportunity Commission) regulations have established that employees have the right to work in an environment free from discriminatory intimidation, ridicule, and insult. This principle was originally applied to harassment based on race (Rogers v. EEOC, 1971). Only more recently, in Meriror Savings Bank v. Vinson (1986), did the United States Supreme Court extend the principle to cases of sexual harassment. Notably, in Meriror, the Supreme Court also held that a violation may be found absent any tangible economic loss to the complainant. In other words, the purely psychological aspects of the workplace environment may comprise the basis of a discrimination suit. Precisely what proof will comprise a viable claim on this basis remains to be seen.

Courts have repeatedly held that isolated events, such as the mere utterance of an ethnic or racial epithet that upsets an employee, would not affect the conditions of employment to a sufficiently significant degree to violate Title VII (Henson v. Dundee, 1982). Nonetheless, courts are becoming more receptive to evidence concerning the atmosphere in the workplace. For example, in a recent classwide case of racial discrimhation, the plaintiffs’ evidence of the discriminatory atmosphere in the workplace was considered by the court as part of the anecdotal evidence to supplement statistical proofs comprising the disparate treatment case (Martinez v. Oakland Scavenger Co., 1987). The court looked to facts such as the segregation of minorities from nonminorities in the various departments. Standards or guidelines to evaluate claims based purely on discriminatory psychological aspects of the workplace environment are still evolving. Proof can be difficult, particularly when no tangible detriment can be cited. We believe that social psychologists have much to offer in such cases.

THE ROLE OF SOCIAL SCIENCE EXPERTS IN EMPLOYMENT DISCRIMINATION CASES

While courts are sometimes reluctant to accept social science authority, expert testimony in cases involving discrimination has been more readily admitted than in cases involving other substantive areas .of the law. In reviewing the uses of social science in court, Monahan and Walker (1988) distinguished three types of social science evidence. All three types of social science evidence have been admitted in employment discrimination litigation.

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First, Monahan and Walker noted that social science research may inform the court about social or adjudicative facts involving the immediate participants in a case. The presentation of case-specific research tailored to resolve a factual issue before the court is by far the least contentious use of social science in the law because the relevance of the data is usually undisputed. In certain classwide employment cases, an expert may present results of a scientific survey designed to assess the interest of class members in promotions or other employment benefits, or to assess their perception of management’s attitudes toward protected groups. For instance, in EEOC v. Sears, Roebuck and Co. (1988), the Equal Employment Opportunity Commission alleged that classwide, systematic gender- based discrimination against female sales clerks resulted in the overrepresentation of women in noncommission retail positions, and their underrepresentation in lucrative sales positions for “big ticket” items such as automotive accessories, appliances, and sporting goods. In defense of the suit, Sears claimed that women were not interested in commission sales positions. A survey of the female sales clerks was instrumental in determining the proportion of women who expressed interest in the commission sales positions and who thus comprised the aggrieved members of the protected class.

A second use of social science findings in law distinguished by Monahan and Walker is social science as legislative fact, to be used as a source of authority akin to legal precedent. A well-known example is the case of Brown v. Board of Education (1954), in which a unanimous Supreme Court cited seven social science references to support its finding that segregation in public schools deprived minorities of equal education opportunities. The research cited did not directly involve the parties to the lawsuit, and was presented to the court in the form of a written Brandeis brief, a procedure that originated in 1903 (Driessen, 1983). Of course, this application of social science may also be in the form of oral testimony. A more recent example of expert testimony in this category in the employment discrimination context is found in EEOC v. Sears, Roebuck and Co. (1988). To defend the manifest disparity in the distribution and earnings of male versus female sales agents, Sears called a historian as an expert. The testimony was presented to persuade the court that, because traditionally women’s interests, goals, and aspirations regarding their work differed from those of males, women were not interested in commission sales positions. Accordingly, Sears argued that employer discrimination alone did not account for the absence of women in higher-paid positions (Milkman, 1986). Social science evidence supporting the position was presented to the court, both in the form of a 24-point written offer of proof reviewing women’s occupations in the labor force from the early 1800s to the present (“Offer to Proof,” 1986) and orally at trial. The EEOC’s rebuttal expert offered an alternative reading of the same historical records , in which preferences of employers explained the underrepresentation of women in specific jobs, and opportunity shaped the position of men and women in the work force (“Written Testimony,” 1986).

The third use of social science findings distinguished by Monahan and Walker (1988) is a hybrid of the two former categories. In this third category, social


Goodman and Croyle: Social Framework Testimony 23 1

science evidence provides a background or framework of data in light of which legal and factual issues before the court can be better evaluated. Because the general conclusions from the social science research cited by the expert provide a frame of reference for determining factual issues presented in a particular case, Monahan and Walker (1985) refer to it as “social framework” testimony.

This third category of e x p t testimony has engendered controversy and opposition (Melton, 1987; Tremper, 1987), so much that Monahan and Walker (1988) proposed it should be abandoned. In its place, they favor the use of written briefs to make relevant empirical work available to the judge. In a jury trial, research findings might also form the basis of specialized jury instructions that attempt to inform jurors about psychological processes that are unfamiliar to the layperson. However, were this method of presenting evidence to the court adopted, the opportunity to cross-examine the experts would be lost. Some commentators have argued that cross-examination of witnesses, including experts, is too fun- damentally important to the advocacy system ofjustice to be abandoned (Colquitt, 1988). Because psychological research also indicates that jury instructions are often misunderstood or ignored (Thompson, Fong, & Rosenhan, 1981), it remains to be seen whether briefs or instructions are an adequate substitute for in-court framework testimony from an expert.

THE SOCIAL FRAMEWORK OF EMPLOYMENT DISCRIMINATION

We now focus on the content of social framework testimony in employment discrimination cases. Space does not permit a description of all the approaches used by expert witnesses in this area. Indeed,, because this type of testimony is relatively new, we cannot be sure that the approach we discuss here will continue to be representative. It is, however, an approach that has been utilized and accepted in both Washington State and U.S. district courts. Because the second author has provided testimony concerning the social psychology of sex and race discrimination, we first describe the body of research he relies on when providing such testimony. Then we discuss an important federal court case in which a variation of social b e w o r k testimony was provided concerning allegations of sex discrimination.

What bodies of psychological research might help a judge or jury understand the manifestations of discrimination? One area of research directly applicable to discrimination is expectancy confirmation, better known as the self-fulfilling prophecy (Cooper & Croyle, 1982). Although the self-fulfilling prophecy was first discussed by Robert Merton (1948), empirical research on the topic began to attract widespread attention when Rosenthal and Jacobson (1968) reported the results of a study on the effects of teacher expectations on student performance. In that study, teachers were told that certain students were “late bloomers” with high potential. Although the individual students were randomly selected, the researchers led the teachers to believe that hidden potential had been identified by psychological test results gathered earlier. Follow-up data suggested that students who were labeled as having potential scored better on academic tests. Similar effects have been demonstrated in the workplace (e.g., King, 1971).

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Thus a prophecy based on erroneous information can be fulfilled by its impact on the subjects’ behavior.

Wile expectations can influence another person’s behavior, it is also true that expectations influence how the behavior of others is interpreted (Jones, 1986; Snyder, 1984). And one of the most common sources of expectations is a stereotype. Stereotypes based on sex and race are especially powerful because sex and race are so visible. In addition, these stereotypes are based on selective information and myth acquired throughout one’s life. Self-interest can help motivate the individual to maintain or even bolster negative stereotypes about members of another sex, race, or age group. Because these biases can lead one to pay greater attention to information that confirms them and to ignore information that disconfirms them (Bodenhausen, 1988), they can persist even when contra- dictory information is available (Fiske & Taylor, 1984).

Darley and Fazio (1 980) provided a sequential model of the expectancy confirmation sequence that is widely accepted among social psychologists. Their model uses the example of an interaction between two people, one of whom (the “perceiver”) holds the expectancy of interest (e.g., a racial or sexual stereotype). The steps in the sequence are: (a) The perceiver forms an expectancy; (b) the perceiver behaves in a way consistent with the expectancy; (c) the target interprets the perceiver’s behavior; (d) the target responds; (e) the perceiver interprets the target’s response; and (f) the target interprets his or her own response. Research has documented each of these stages.

This model is directly applicable to the discrimination context. It can also provide a helpful framework for a judge or jury to organize the facts of a case. By relating the facts of the case to the expectancy confirmation sequence, the expert can illustrate the link between a negative stereotype and a decision that negatively impacts the plaintiff. For example, there might be evidence that: (a) a supervisor disliked Blacks; (b) this dislike was manifested by negative verbal and nonverbal behavior directed toward the Black plaintiff; (c) this behavior was interpreted by the plaintiff as racism; (d) the plaintiff responded by avoiding contact with the supervisor; (e) the supervisor interpreted the avoidance as disinterest in promotion and lack of collegiality; and (f) the plaintiff‘s confidence concerning his or her opportunity for promotion was lowered because he or she was the only employee who did not maintain a social relationship with the supervisor.

Are all members of a protected class likely to be equally disadvantaged by the application of stereotypes? Not necessarily. Gender stereotypes, for example, define what behaviors and traits are “appropriate” for men and women (Deaux & Major, 1987). In some situations, a woman who fails to conform to the stereotype will be evaluated more negatively than a woman who appears to fit the stereotype (Costrich, Feinstein, Kidder, Marecek, & Pascale, 1975). In addition, an employer’s beliefs about the occupation have to be considered. For instance, if stereotypically feminine traits are believed to be associated with nursing skills, the application of gender stereotypes to male nursing applicants will result in their being disadvantaged (Heilman, Martell, & Simon, 1988; Kalin

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& Hodgins, 1984). On the other hand, men are more likely to be considered for promotion to jobs that are believed to require “masculine” characteristics. The communication of this expectancy on the part of management may then discourage women from expressing interest in promotion.

A second category of biases that is relevant to discrimination is that of attribution biases (Deawr, 1976). Attribution research in social psychology is concerned with individuals’ subjective explanations for their own and others’ behavior. One of the important biases in the discrimination context is the fundamental attribution error. Several studies have shown that observers often underestimate the role of situational factors in another person’s performance (Fiske & Taylor, 1984). In the case of prejudice, negative behavim of the outgroup member are attributed to the dispositions of the person (e.g., laziness, lack of intelligence) rather than to disadvantages or immediate constraints of the situation. Pettigrew (1979) was the first to refer to this bias as the “ultimate attribution error.” A study by Duncan (1976), for example, examined White subjects’ intexpretations of a videotaped interaction. The results showed that White observers were more likely to attribute a Black’s ambiguous shove to personal traits while the same behavior from a White target was attributed to situational factors. In addition, the identical shove from the Black was rated as more violent than the shove from the White.

In a recent race discrimination case, the second author provided framework testimony on the role of attribution biases in the decision to deny the plaintiff a promotion (Alexander v . University of Washington, 1988). The Black plaintiff ran a ticket office for the university during a period of significant expansion. Although the work load steadily increased, the plaintiff was provided little additional support. Several internal memoranda indicated that the plaintiff was competent but lacked adequate resources. Eventually, as the system began to break down, the employer decided to create a new management position and hired a White employee to supervise the plaintiff. The framework testimony suggested that the attribution underlying this action was consistent with literature concerning attribution biases. In this case, situational factors had been discounted by the university and problems were attributed to the plaintiff‘s lack of managerial skills. The judge ruled in favor of the plaintiff.

The rarity of members of a protected class within a certain status level of a work setting is also a factor to be considered. Rarity can produce a salience bias, whereby the individual draws more attention but is evaluated in a more extreme and stereotypical manner because of his or her rarity (McArthur, 1981). This factor can be difficult to explain to a jury, but vivid examples can help illustrate important findings from the research. The jurors might be asked to imagine, for example, a conference table around which sit seven men and one woman. The gender of that woman is clearly a more important factor in how she is perceived simply because of her solo status.

A CASE STUDY: HOPKINS V . PRICE WATERHOUSE The way in which social framework testimony may be used in an employment

discrimination case is illustrated by the case of Ann Hopkins, who brought an

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individual claim of sex-based disparate treatment. In this case, pending before the U.S. Supreme Court, the testimony of a social psychologist was pivotal. Thus it provides a useful vehicle to review the nature and scope of a social psychologist’s expert testimony more closely.

Ann Hopkins was employed by Price Waterhouse, a nationwide accounting firm, with approximately 662 partners in 90 different offices. New partners were selected annually from the ranks of senior managers through a recommendations and review process in which partners provided written evaluations of the candidate’s business skills, technical expertise, and interpersonal skills. In 1982, a total of 88 candidates were recommended for partnership. As the district court judge stated in his opinion, Ann Hopkins had “no difficulty dealing with clients and her clients appear to have been very pleased with her work. None of the other partnership candidates at Price Waterhouse that year had a comparable record in terms of successfully securing major contracts for the partnership” (Hopkins v. Price Wuterhouse, 1985, p. 1112). She was, however, the only female candidate for partner, and all current Price Waterhouse partners were men. Several male partners rated her interpersonal skills as poor, complaining that she was overly aggressive, unduly harsh, difficult to work with, profane, and impatient with the staff. She was denied promotion and later advised that it was unlikely she would ever be admitted to partnership. She resigned and sued Price Waterhouse, claiming that the stated reasons for refusing her were in part gender based, and that she had been treated differently from male candidates for promotion, in whom the same conduct was tolerated.. Testimony from some of the males who opposed her promotion included statements that Hopkins was not feminine enough, that she was “macho,” should take a “course at charm school,” and “may have overcompensated for being a woman.” The head partner, in counseling Hopkins as to what she might do to overcome the partners’ reservations about promoting her, said she “should walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled, and wear jewelry-”

As part of her claim of discrimination, Hopkins alleged that the criticisms of her interpersonal skills “were a product of sexual stereotyping by male partners and the firm’s partnership selection process improperly gave weight to these discrimi~tmy evaluations’’ (Hopkins v. Price Waterhouse, 1985). Notwithstanding the fact that the Equal Employment Opportunity Commission guidelines had long regarded the expression of stereotypical attitudes about whether women should be aggressive as evidence of disparate treatment because of sex, the case law was not helpful in outlining the elements of proof to bring a viable claim on this basis. Hopkins sought the assistance of an expert on sexual stereotyping, social psychologist Susan Fiske.

Basically, the role of the expert in a discrimination suit is to become acquainted with the disputed facts, to review the relevant scientific literature to cull out those findings that pertain to the decisions or practices alleged to be discriminatory, and to emphasize those aspects of the research findings that are unlikely to be known by the judge or the jury. The first step is often to prepare a written or



oral offer of proof establishing the presence in the case at hand of variables that researchers have found to increase the likelihood of bias. Or the psychologist may provide testimony describing the relevant findings h m the research literature on race and sex stereotyping. After reviewing the pertinent scientific literature, the expert witness can summarize the literature, critique it, and apply it to the facts of the case (Gorman, 1987).

At trial, in support of Hopkins’ case, Dr. Fiske testified that she reviewed the partners’ comments about the plaintiff and other partnership candidates, and gave an opinion as to the possible presence of sex stereotyping. She did not claim to be able to determine whether any particular reaction by any particular partner was produced by the operation of sex stereotypes, but she did identify comments that she believed were influenced by sex stereotypes. Without pinpointing the degree to which stemty-ping influenced the selection process, Dr. Fiske concluded that sex stereotyping was a major factor motivating Price Waterhouse’s decision not to promote Hopkins.

The employer did not challenge Dr. Fiske’s discipline at trial. The trial court declared Dr. Fiske to be a “well-qualified expert, who has done extensive research and study in the field of stereotyping” (Hopkins v. Price Waterhouse, 1985). The court found that, while discriminatory stereotyping of females played a part in the partnership decision (“part of the regular fodder of partnership evaluations”), the stereotypes reflected in the partners’ comments were unconscious. Thus they did not prove discriminatory intent, The district court noted, however, that Price Waterhouse had taken no steps to discourage sexism, to heighten the sensitivity of partners to sexist attitudes, or to investigate negative comments to ascertain whether they were the product of such attitudes. Because adoption of a personnel system giving weight to such biased criticism was a conscious act of the partnership as a whole, the court ultimately held Price Waterhouse liable for violating Title W, and ordered it to pay back wages to AM Hopkins.

On appeal to the District of Columbia Circuit Court, Price Waterhouse challenged the psychologist’s testimony, contending that it did not constitute competent evidence in supprt of the lower court’s finding that impermissible sexual stereotyping had infected the partnership evaluation system. The expert’s testimony was characterized as “sheer speculation’’ of “no evidentiary value.” The trial court findings were affirmed, with the comment that “to the extent that Price Waterhouse believes Dr. Fiske lacked necessary information, the firm is in fact quarreling with her field of expertise and the methodology it employs. Defendant, however, failed to challenge the validity of Dr. Fiske’s discipline at trial and disavows any such challenge here” (Hopkins v. Price Waterhouse, 1987, p. 467). Undaunted, Price Waterhouse lodged a final appeal to the U.S. Supreme Court, which further attacked the scientific basis of the expert testimony and methodology. For instance, the defendant implied that the term sex stereovping was neologistic or unaccepted by placing the term within quotations (“Brief of the MA,” 1988). Dr. Fiske’s testimony was also labeled as “gossamer evidence” and “intuitively divined.”

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THE ADMISSIBILITY OF SOCIAL FRAMEWORK EVIDENCE

The admissibility of expert testimony in court, including that by a social framework expert on sexual stereotyping or other judgmental biases, is governed by the “helpfulness” standard outlined in Federal Rule of Evidence 702:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Generally, a two-part determination is made in applying this standard (Graham, 1986): (a) Is there a reliable body of scientific knowledge that could assist a trier of fact determine a fact in issue? (b) Is the witness qualified to testify as an expert? Assuming the expert witness is qualified, the fact that not all experts may hold the same opinion regarding the relevant scientific knowledge does not render the testimony inadmissible.

Several recent law review articles documented the difference in emphasis between Federal Rule of Evidence 702, which, since 1975, has governed the admissibility of scientific evidence, and the Frye “general acceptance” test, the prior universally accepted standard (Frye v. United States, 1923) (Bretz, 1987; Giannelli, 1980; Graham, 1986; Knaggs, 1987). Federal Rule of Evidence 702 focuses on the helpfulness of the evidence to the jury, using a relevancy approach in which the probative value of the testimony is weighed against its prejudicial value. Some commentators have noted that expert testimony is more likely to be admitted under the helpfulness standard than under the Frye test, which focuses on whether the scientific test or principle in issue is generally accepted in the field to which it belongs (Colquitt, 1988; Gorman, 1987). Whether Fed. R. Evid. 702 incorporates the Frye standard has remained a controversial question, and the precise status of the Frye test under the Fed. R. Evid. varies from one circuit to another. Five circuit courts apply the Frye test; five selectively apply Frye, or a modified form of the original standard; one circuit has yet to rule on the issue, and. one circuit court, the third, has expressly rejected the Frye test (Knaggs, 1987). In ruling on the admissibility of social framework testimony, the Ninth Circuit Court of Appeals (U.S. v. Amral , 1973) established a four-pronged test that explicitly incorporates both Fed. R. Evid. 702 and the Frye standards: (a) The expert must be qualified, having attained knowledge beyond that of the average layperson; (b) the testimony must address a proper subject; (c) the testimony must conform to a generally accepted explanatory theory; (d) the probative value of the evidence must outweigh its prejudicial effect.

In some instances, social framework testimony is erroneously opposed because of insensitivity to differences between the nature of expert testimony regarding adjudicative facts (first category) and social framework testimony (third category). One clear example is ignorance of or confusion over the difference between the role of a clinical psychologist offering an expert opinion on the mental competence



of a party to a lawsuit (first category) and the role of an experimental psychologist offering an expert opinion on general factors known to influence the accuracy of human perception and memory (thiid category) (Goodman & Loftus, 1988). Confusion of this sort was apparent in the challenge to the testimor,y of Dr. Susan Fiske. For example, Dr. Fiske was criticized and her testimony was regarded as faulty because she never met Ann Hopkins or the authors of the evaluative comments, but merely reviewed partners’ evaluations of Hopkins. This criticism of the expert’s testimony prompted the American Psychological Association to submit an amicus brief supporting Ann Hopkins, in an effort to educate the Supreme Court about defendant’s lack of sophistication and knowledge about the nature of scientific research in general, and sex stereotyping in particular:

. . . petitioner’s claim that Dr. Fiske’s testimony lacked validity because she did not personally interview Ms. Hopkins is scientifically naive and irrelevant. Petitioner confuses the work of research psychologists like Dr. Fiske with that of clinical psychologists who use interviews and other assessment devices to arrive at adiagnosis of a patient. The issue about which Dr. Fiske was asked to testify concerned the presence vel non of discriminatory stereotyping at Price Waterhouse, not the mental state of Ms. Hopkins. The proper focus, then, was on the conduct of petitioner’s partners, reflected in their evaluations. Dr. Fiske brought precisely that focus when she evaluated the conditions at Price Waterhouse that evoke stereotyping and the judgments of its partners in light of the research literature on stereotyping. In any event, petitioner should have availed itself of the rules of evidence, see Fed. R. Evid. 702-705, and case law, e.g., Frye v. United States, 293 F.2nd 1013 (D.C. Cir. 1923), at the trial level if it wanted to lodge the challenges it now makes here. (“Brief of the APA,” 1988, p. 3)

To assess whether a research finding has been generally accepted, the testifying expert will often be asked whether a finding has been established ‘70 a reasonable degree of scientific certainty,” although it is not required that the expert use this phrase explicitly (Sentilles v. Inter-Curibbean Corp., 1959). The phrase, properly understood, refers to whether the expert, in deriving his or her opinion, relied on an explanatory theory that experts in the discipline substantially accept (Boose v. Digute, 1969). This consensus requirement reflects values underlying the FIye test of general acceptance. In construing this requirement, courts have held that there is room for differing minority opinions among qualified experts.

THE PROBATIVE WEIGHT OF THE EXPERT TESTIMONY

In its own amicus curiae brief to the Supreme Court concerning the social framework testimony in Hopkins v. Price Waterhouse, the U.S. Department of Justice argued that the mere presence of stereotyping in the decision-making process does not automatically confer liability:

More is needed than the showing that those who made the decision harbored or even gave voice to stereotyping opinions. Those opinions must have been

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shown in some way to have disadvantaged respondent in her quest for promotion and thus have played a causal role in her being denied that promotion. . . . To make out a case of discriminatory denial it must be shown that the stereotyping was part of a motive which improperly disadvantaged the applicant. (“Brief of the Justice Dept.,” 1988 pp. 26-27)

The legal theory under which Hopkins proceeded was disparate treatment, since her case was filed several years before the Supreme Court’s decision in Watson v. Fort Worth Bank & Trust (1988) authorized application of the disparate impact model to cases involving subjective employment decisions. Following Watson, the causal relationship between the subjective practice (such as stereotyping) and the discriminatory outcome may be inferred from the statistical disparities.

SOCIAL FRAMEWORK TESTIMONY CONCERNING LESS DISCRIMINATORY PRACTICES

In a disparate impact case, once the defendant comes forward and produces evidence that the subjective practice is justified by a business necessity, the plaintiff must prove that this business interest can be fulfilled by a less discriminatory alternative practice. This is an area in which the psychologist can be of further assistance. For example, considerable research has been conducted on ways to minimize reliance on judgmental biases, such as stereotypes. In Hopkins v. Price Waterhouse, for example, Dr. Fiske testified that the employer could have taken steps known to diminish the reliance on sexual stereotypes. These were summarized in the American Psychological Association’s amicus brief:

Three conditions contribute to the reduction of stereotypic thought and discriminatory action: (1) additional information; (2) increased attention to that information; and (3) motivational incentives that support increased attention and indicate consensual disapproval of stereotyping. None of these conditions, by itself, is sufficient but must be present in concert. Nevertheless, petitioner failed to employ any of these conditions. (“Brief of the MA,” 1988, pp. 25-26)

This argument suggests that employers have an obligation to make use of social psychological evidence concerning stereotype-based biases and their prevention. The district court clearly was persuaded by Fiske’s testimony in this regard, noting:

The maintenance of a system that gave weight to such biased criticisms was a conscious act of the partnership as a whole. . . . Price Waterhouse . . . made no efforts to make partners sensitive to the dangers, to discourage comments tainted by sexism, or to investigate comments to determine whether they were influenced by stereotypes. (Hopkins v. Price Waterhouse, 1985, p. 1119)



The court's finding in this case suggests a role for social psychologists as consultants to companies that are attempting to improve their promotion practices. While industrial-organizational psychologists have long served as consultants on objective hiring and promotion criteria, some mandate now exists to prevent practices that allow subjective criteria to be infiuenced by stereotypes. The training and expextise of social psychologists may now be called upon more frequently as companies attempt to minimize their exposure to discrimination claims.

CONCLUSION

Recent history has demonstrated that social psychologists can make important contributions in employment discrimination cases. Traditionally, psychologists have been introduced as expert witnesses in discrimination cases to present statistical analyses or to express an opinion concerning their clinical assessment of the psychological impact of discrimination. A newer role for the social psychologist is the provision of social framework testimony focusing on relevant research literature and its application to the facts of a particular case. While this testimony can only address indirectly the ultimate issue in discrimination cases, it may nevertheless provide a judge or jury with a new method for conceptualizing and organizing the often complex facts surrounding alleged discriminatory practices. In addition, the communication of the large body of psychological research on discrimination to the corporate legal community can provide new strategies for the prevention of discriminatory practices in the workplace.

REFERENCES

Alexander v. University of Washington, No. 85-2-15427-4 (King County Sup. Ct., Wash., 1988). Bodenhausen, G.V. (1988). Stereotypic biases in social decision making and memory: Testing

process models of stereotype use. Journal of Personality & Social Psychology, 55. 726-737. Boose v. Digate, 107 111. App. 2d 418,423, 246 N.E. 2d 5, 53 (3d Dist. 1969). Bretz, R.J. (1987). Scientific evidence and the Frye rule: The case for a cautious approach. Cooley

Law Review, 4 , 506-521. Brief for Amicus Curiae American Psychological Association in Support of Respondent, Hopkins

v. Price Waterhouse, 825 F.2d 458, cert. granted, - US. -, 108 S.Ct. 1106. 99 L.Ed. 2d 268 (1988).

Brief for the U.S. Dept. of Justice in Support of Respondent, Hopkins v. Price Waterhouse, 825 F.2d 458, cert. grunted, - U.S. -, 108 S.Ct. 1106, 99 L.Ed. 2d 268 (1988).

Brown v . BoardofEducarion, 347 U.S. 483 (1954). Colquitt, J.A. (1988). Judicial use of social science evidencz at trial. Arizona Law Review, 30,

Cooper, J., & Croyle, R.T. (1982, March). From experimenter bias to social interaction: The self fu[filling prophecy in social psychology. Presented at a Symposium of the American Educational Research Association, New York.

Costrich, N., Feinstein, J., Kidder, L., Marecek, J., & Pascale, L. 91975). When stereotypes hurt: Three studies of penalties for sex-role reversals. Journal of Experimental Social Psychology,

Darley, J.M., & Fazio, R.H. (1980). Expectancy confirmation processes arising in the social interaction sequence. American Psychologist, 35, 867- 881.

Deaux, K. (1976). Sex: A perspective on the attribution process. In J.H. Harvey, W. J. Ickes, & R.F. Kidd (Eds.), New directions in attribution research (Vol. I , pp. 335-352). Hillsdale, NJ: Erlbaum.

51-84.

11, 520-530.

VOL. 7, NO. 2 1989


Deaux, K., & Major, B. (1987). Putting gender into context: An interactive model of gender-related behavior. Psychological Review, 94, 369-389.

DeGroot, M.H., Fienberg, S.E., & Kadane, J.B. (Eds.). (1986). Statistics and the law. New York: Wiley.

Driessen, P.A. (1983). The wedding of social science and the courts: Is the marriage working? Social Science Quarterly, 64, 476-493.

Duncan, B .L. (1976). Differential social perception and attribution of intergroup violence: Testing the lower limits of stereotyping of Blacks. Journal of Personality & Social Psychology, 34, 590-598.

EEOC v. Sears, Roebuck & Co., 839 F.2d 302 (7th Cir. 1988). Federal Rules of Evidence. (1986). Binghamton, NY: Gould. Fiske, S.T., & Taylor, S.E. (1984). Social cognition. Reading, MA: Addison-Wesley. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Giannelli, P. (1980). The admissibility of novel scientific evidence: Frye v. United States, a Half-

Century Later, Columbia Law Review, 80, 1197- 1250. Goodman, J . , & Loftus, E.F. (1988). The relevance of expert testimony on eyewitness memory.

Journal of Interpersonal Violence, 3 ( l ) , 115- 121. Gonnan, M.A. (1987). Evaluating eyewitness testimony in criminal trials: Can jurors use help from

experts? Chicago Kent Law Review, 63, 137- 158. Graham, M.H. (1986). Expert witness testimony and the federal rules of evidence: Insuring adequate

assurances of trustworthiness. University of Illinois Law Review, 43-90. Heilman, M.E.. Martell, R.F., & Simon, M.C. (1988). The vagaries of sex bias: Conditions

regulating the undervaluation, equivaluation, and overvaluation of female job applicants. Or- ganizational Behavioral & Human Decision Processes, 41 , 98- 110.

Henson v. Dundee, 682 F.2d 897, 902 (11th Cir. 1982). Hopkins v. Price Waterhouse, 618 F. Supp. 1109 (D.D.C. 1985). Hopkins v. Price Waterhouse, 825 F.2d 458, 468 (D.C. Cir. 1987). Hopkins v. Price Waterhouse, U.S. (1988). Jones, E. E. (1986). Interpreting interpersonal behavior: The effects of expectancies. Science, 234,

41-46. Kalin, R., & Hodgins, D.C. (1984). Sex bias in judgments of occupational suitability. Canadian

Journal of Behuvioral Science, 16, 311-325. King, A.S. (1971). Self-fulfilling prophecies in training the hard core: Supervisors’ expectations

and the underprivileged workers’ performance. Social Scientist Quarterly, 52, 369-378. Knaggs, C.A. (1987). The admissibility of evidence and expert testimony based on science, technology

or other specialized knowledge-Is the “Frye” standard consistent with the federal rules of evidence? Cooley Law Review, 4 , 640-655.

Loh, W.D. (1984). Social research in the judicial process: Cases. readings, and text. New York Russell Sage.

Martinez v. Oakland Scavenger Co., 680 F. Supp. 1377 (N.D. Cal. 1987). McArthur, L.Z. (1981). What grabs you? The role of attention in impression formation and causal

attribution. In E.T. Higgins, C.P. Herman, & M.P. Zanna (Eds.), Social cognition: The Ontario Symposium (Voi. 1, pp. 201-246). Hillsdale, NJ: Erlbaum.

Melton, G.B. (1987). Bringing psychology to the legal system: Opportunities, obstacles, and efficacy. American Psychologist, 42 (5). 488-Sol.

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). Merton, R.K. (1948). The self-fulfilling prophecy. Antioch Review, 8, 193-210. Milkman, R. (1986). Women’s history and the Sears case. Feminist Studies, 12 (2), 375-400. MogiIl, K.M. (1987). Some reflections on the relationship between the jury system, truth and Charles

Monahan, 1.. & Walker, L. (1985). Social science in taw: Cases and materials. New York Foundation

Monahan, J., & Walker, L. (1988). Social science research in law. American Psychologist, 43 (6),

Offer of Proof Concerning the Testimony of Dr. Rosalind Rosenberg. (1986, Summer). Signs, pp.

Pettigrew, T.F. (1979). The ultimate attribution error: Extending Allport’s cognitive analysis of

Rogers v. EEOC, 454 F.2d 234 (5th. Cir. 1971).

Ives. Cooley Law Review, 4 , 610-616.

Press.

465- 472.

757-766.

prejudice. Personality & Social Psychology Bulletin, 5 , 461 -476.


Goodman and Croyle: Social Framework Testimony 24 1

Rosenthal, R., & Jacobson, L. (1968). Pygmalion in the classroom. New York: Holt, Rinehart &

Sentilles v . Infer-Carribean Corp., 361 US. 107, 109 (1959). Snyder, M. (1984). When belief creates reality. In L. Berkowitz (Ed.), Advances in experimental

Tempest, C.R. (1987). Sanguinity and disillusionment where law meets social science. Law &

Thompson, W.C., Fong, G.T., & Rosenhan, D.L. (1981). Inadmissible evidence and juror verdicts.

Tremper, C. (1987). Organized psychology’s efforts to influence judicial decision making. American

Walker, L., & Monahan, J. (1987). Social frameworks: A new use of social science in law. Virginia

Watson v . Fort Worth Bank & Trust, 108 S. Ct. 2777 (1988). Written Testimony of Alice Kessler-Harris. (1986. Summer). Signs, pp. 767-779.

Winston.

social psychology (Vol. 18, pp. 247-305).

Human Behavior, I1 (4), 267-276.

Journal of Personuliry & Social Psychology, 40, 453-463.

Psychologist, 42, 496-501.

Lmo Review, 73, 559-598.

VOL. 7, NO. 2 1989

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