Is the propensity to stereotype inadmissible character evidence? That is what King and Amin answer in the affirmative in the Fall 2011 issue of the ABA Journal of Labor and Employment Law. See Vol. 27, No. 1.
Employment discrimination claims based on pattern and practice evidence are common and can be successful, but courts require more than just a bare allegation of patter and practice of misconduct. Increasingly, plaintiffs are turning to social science experts to meet this burden. Such experts rely on "social framework evidence" to show that "seemingly distinct and independent employment decisions emanate from a company-wide culture of discrimination." This was the argument made in last years Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2547-48 (2011).
King and Amin summarize the Dukes theory as follows:
"(1) dominant social grounds have an automatic tendency to invoke negative stereotypes in judging minorities, which operate at an unconscious level, (2) because management of most corporations is populated by members of the dominant social group, stereotyped decisionmaking pervades these corporations; (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; and (4) whether the corporate culture is permeated by stereotypical decisionmaking therefore can be assessed by gauging the strength and effectiveness of a company's policies and practices aimed at curbing stereotypical decisionmaking."
Obviously there are a lot of generalities and untestable assumptions built into that windy standard. Accordingly, it was soundly disparaged by the Supreme Court in the Dukes case as being "too general to be probative." The social framework fails to persuade, in particular, because it cannot "predict or measure the extent to which stereotyping is responsible for any of the decisions within any particular workplace.
After the Court's rejection of social framework evidence, the authors posit that the plaintiff bar may turn instead to to "implicit bias research" to show discrimination, in the future. Implicit bias theory states that "individuals are animated by prejudices of which they themselves are unaware," and these subconscious prejudices can be measured through physiological and behavioral measures that better rely on unconscious responses than the traditional questionnaire.
Physiological and behavioral measurements can be extraordinarily revealing. However, they have been found to constitute impermissible character evidence. This raises the question of whether evidence of actual bias could be introduced. However, only one court has ordered a defendant to submit to such testing. Palgut v. City of Colorado Sprigs, (D. Colo. July 3, 2008). Besides the invasion of privacy issues, the tests may well be measuring a state of mind in existence months or years after the events in controversy.
An additional question raised is whether the use of such evidence would be permissible to demonstrate a corporation's character. However, the authors note such use would likely be impermissible under Rule 404. Although corporations are "persons" for some purposes but not others, some commentators argue that Rule 404 is irrelevant to them because they do not have "character." In this particular instance, however, it would be evidence of the propensity of individuals making up the corporation. "Indeed, it is the failure of the corporation to develop an independent culture, free of the natural biases that characterize its employees, the permits these experts to label the corporate culture as discriminatory." Id. Accordingly, Rule 404 should operate to exclude evidence of individual employee's propensity.
An additional question raised is whether the use of such evidence would be permissible to demonstrate a corporation's character. However, the authors note such use would likely be impermissible under Rule 404. Although corporations are "persons" for some purposes but not others, some commentators argue that Rule 404 is irrelevant to them because they do not have "character." In this particular instance, however, it would be evidence of the propensity of individuals making up the corporation. "Indeed, it is the failure of the corporation to develop an independent culture, free of the natural biases that characterize its employees, the permits these experts to label the corporate culture as discriminatory." Id. Accordingly, Rule 404 should operate to exclude evidence of individual employee's propensity.
It is an amazing age we are living in, when social sciences can teach us much about ourselves and our institutions. However, it is still a relief to me that much of the fruit of these soft and subjective sciences is excluded from evidence as prejudicial and unreliable. Otherwise, we could find ourselves living out The Minority Report....
If you have any labor or employment matters that you would like to resolve privately through a knowledgeable and experienced arbitrator or mediator, please feel free to contact Pilar Vaile, P.C. at (505) 247-0802, or info@pilarvailepc.com.
