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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