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56 Emory L.J. 1563 (2006-2007)
Statistical Dueling with Unconventional Weapons: What Courts Should Know about Experts in Employments Discrimination Class Actions

handle is hein.journals/emlj56 and id is 1575 raw text is: STATISTICAL DUELING WITH UNCONVENTIONAL WEAPONS: WHAT COURTS SHOULD KNOW ABOUT EXPERTS IN EMPLOYMENT DISCRIMINATION CLASS ACTIONS William T. Bielby* Pamela Coukos** ABSTRACT When statistical evidence is offered in a litigation context, the result can be bad law and bad statistics. In recent high-profile, high-stakes employment discrimination class actions against large multinationals like UPS, Wal-Mart, and Marriott, plaintiffs have claimed that decentralized and highly discretionary management practices result in systematic gender or racial disparities in pay and promotion. At class certification, plaintiffs have relied in part on statistical analyses of the company's workforce showing companywide inequality. Defendants have responded with statistical presentations of their own, which frequently demonstrate widely varying outcomes for members of protected groups in different geographic areas of the company. These expert submissions usually suggest either that no problems exist, or that any discrimination is isolated and not attributable to institutional-level bias. In adjudicating between these competing visions, courts must referee what the Second Circuit terms statistical dueling. As we show in this Article, sometimes at least one of the parties is dueling with unconventional weapons. Using simulated * Professor of Sociology, University of Pennsylvania; Ph.D., Sociology, University of Wisconsin, Madison (1976). ** Ph.D. Candidate, University of California, Berkeley, Boalt Hall School of Law Jurisprudence and Social Policy Program; J.D., Harvard Law School (1994). This research benefited from participation in a research working group entitled Social Science Perspectives on Employment Discrimination in Organizations (SSPEDO), which is part of the Discrimination Research Group. The Discrimination Research Group is a joint effort funded by the American Bar Foundation, the Center for Advanced Study in the Behavioral Sciences, and the Ford Foundation (grant no. 1045-0189). The research reported in this Article was also conducted with the support of the College of Arts and Sciences of the University of Pennsylvania. The authors wish to thank all the members of SSPEDO and to also acknowledge KT Albiston, Hannah Brueckner, Lauren Edelman, Melissa Hart, Linda Krieger, Robert L. Nelson, Laura Beth Nielsen, Vicki Schultz, and Donald Tomaskovic-Devey for their contributions to this project.

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