Cornell University Law School Social Science and Law

Gender Discrimination and Class Actions: Walmart v. Dukes

Compiled by Fatmata Kabia, Filippo Macchi, Camille Bacon-Shulte, and Yuyao Tan

Photo courtesy of The New Yorker
(http://www.newyorker.com/online/blogs/newsdesk/2011/06/betty-dukes-v-walmart.html)

Overview: A group of female employees alleged that Wal-Mart Stores, Inc. discriminated against them on the basis of gender.  The women sued Wal-Mart and sought to file a class action represented by a small group of women who sued the company.  This resulted in an extremely large nationwide class action.  Thus the crux of the case became "whether the women are similar enough to be certified as a class."
http://www.scotusblog.com/case-files/cases/wal-mart-v-dukes/

Part 1: The Legal Question

Major legal question:
Are the women suing Wal-Mart similar enough to be certified as a class under the federal rules?

Wal-Mart's response: The class is too big for the women to all have similar enough claims and it should be the burden of each woman to show otherwise Women's response: They all work at different stores but they all face similar discrimination, i.e. the same kinds of harm, which stems from corporate policy. Court's response (Scalia): This class is not consistent with Federal Rule 23(a). It is the burden of the party seeking certification to prove the class has a common question of law or fact. This requires more evidence than the anecdotal and statistical evidence provided by the women.

Part 2: The Social Science Evidence

The Plaintiffs offered social science evidence on three forms of proof:

(1) Statistical evidence about pay and promotion disparities between men and women at the company; (2) Anecdotal1 reports of discrimination from about 120 of Wal-Mart’s female employees; and (3) Expert testimony from sociologist Dr. William Bielby.    Over the course of the proceedings the usefulness of expert testimony was called into question. The expert’s testimony, based on a social framework analysis of Wal-Mart’s “culture” and personnel practices, was designed to answer the question of whether gender discrimination was inherent to the institutional policy at Wal-Mart. Ultimately, the court found that Bielby’s testimony could not pass the Daubert gatekeeping standard. The court’s reasoning was that Bielby’s testimony could not reveal with any precision, the probability of discriminatory employment decisions. Below, we will discuss the strengths and weakness of this argument, as it relates to the study to determine whether the social science evidence used on behalf of the Wal-Mart workers was scientifically sound.

Understanding the Key Questions:

1) Whether the key elements of the personnel system at Wal-Mart are uniform across the U.S. retail divisions; and 2) Whether uniform features of the Wal-Mart personnel system create barriers to women’s career advancement in the company (particularly with respect to compensation and to promotion into management)

     For the plaintiffs, affirmative answers to these questions would indicate commonality. Under the commonality rule for class actions (Rule 23(a)(2)), a plaintiff is required to show that there are questions of law or fact common to the class. As the crux of the inquiry overlaps with the Title VII claim, the social science evidence would also have to illustrate a common reason for a particular employment decision. See Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2552 (2011); see also Cooper v. Federal Reserve Bank of Richmond, 104 S. Ct. 2794 (1984).

     To overcome this conceptual gap, the social science could illustrate either one of two circumstances exists. The first is that the employer used a biased testing procedure to evaluate both applicants for employment and incumbent employees. Consequently, a class action on behalf of every employee who might have been prejudiced by the test would clearly satisfy the Rule 23(a) requirements. The second scenario is that the social science reveals "significant proof" that Wal-Mart "operated under a general policy of discrimination."  Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553 (2011); See also General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 159 (1982) (describing the proper approach to addressing commonality).

Merits of the Social Science Evidence:

Absent a showing of a testing procedure at Wal-Mart, Bielby’s testimony aims to show that there is a "general policy of discrimination". To do so, Bielby presents the court with social framework testimony about social cognition and bias. Instead the expert testimony reveals that Wal-Mart has a policy of allowing local managers discretion over employment decisions. In some cases, this results in gendered policies but the testimony does not indicate that this is company-wide. This is where the merits of the evidence falter.

The Test: Social Framework Analysis

      A social framework uses general conclusions from social science to determine factual issues in a specific case. The goal of using social framework testimony is to help assist the jury in deciding the specific factual issues being litigated. Ideally, social frameworks clarify rather than confuse the issues to be decided at trial. Further, social frameworks often (1) tell jurors something they do not already know, or (2) disabuse jurors of common but erroneous perceptions.

     Through this method, Bielby looked at distinctive features of the firm’s policies and practices and then evaluated them against what social science research shows to be factors that create and sustain bias and those that minimize bias.

      To compile the information for this qualitative test, Bielby reviewed the deposition testimony of Wal-Mart managers responsible for creating and implementing the company's personnel policies, as well as the testimony of managers who made compensation and hiring decisions. Bielby also compiled charts and deposition exhibits along with an expert report from Dr. Marc Bendick and tables from expert Dr. Richard Drogin. Bielby then compared these findings with a large body of research on organizational policy and practice and on workplace bias.  This enabled Bielby to come to the conclusion mentioned above.

     Critics² of Bielby’s test however question whether it is a true social framework at all. Monahan and Walker assert that a social framework is designed to give the jury a normative picture of how society functions in a given area. Here, the area in question is gender discrimination in payment and hiring practices. Yet Bielby appears to use the social framework to also advocate a particular position (See a full discussion of this critique infra Part 4).

     Another problem is that it is unclear if the social framework clearly answers the key questions of the case. The two questions, presented above, are the following: (1) whether the key elements of the personnel system at Wal-Mart are uniform across the U.S. retail divisions; and 2) whether uniform features of the Wal-Mart personnel system create barriers to women’s career advancement in the company (particularly with respect to compensation and to promotion into management). Yet of Bielby’s report fails to determine whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart were determined by stereotyped thinking. This problem illustrates a similar critique that claims that Bielby uses a normative method to attempt to answer an empirical question.  This aim sets Bielby’s evidence apart from a true social framework with information perhaps better suited for a brief to the court rather than expert testimony.

Does it Pass Daubert?

There is a dispute as to whether Daubert applies to the certification stage of class-action proceedings.

     If Daubert were to apply in certification stages, Bielby’s testimony would likely not pass the Daubert standard. Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

     Although Bielby’s particular method has not been tested in the traditional sense, Bielby’s reliance on other expert testimony suggests both that the theory or technique has been tested before and that it has obtained wide acceptance in the scientific community—with application in experiments in the laboratory setting, ethnographies and case studies, as well as application in a variety of industries.  See Expert Report of William Bielby, PhD. (2003).  Further, the lower court found that properly analyzed social science data, like that offered by Dr. Bielby, may add probative value to the plaintiffs’ class action.  In this regard, it appears that Bielby’s testimony would pass Daubert because the testimony seems to (a) qualify as scientific evidence; and (b) be relevant to the task at hand.

     Yet, if we place more weight on the critique of Bielby’s social framework, then Bielby’s testimony would likely not pass Daubert.As Monahan and Walker critique, Bielby did not truly adhere to the type of social framework that would directly support the studies mentioned above (i.e. case studies) that have gained wide acceptance in the scientific community. Consequently, even when Bielby seems to limit the social framework analysis to a sample of key individuals involved in the employment and compensation of workers, the analysis may not qualify as scientific evidence (see discussion infra Part 4).  This is exacerbated by the test’s lack of precision in identifying a known error rate. Therefore these factors and scholarly critique suggests that Bielby’s testimony would likely not pass the Daubert standard if applied in the certification stage of this class-action case.

Part 3: How the Court Interpreted the Use of Social Science

Social science evidence played significant role in this case. Since the social science evidence cannot qualify the "community" among the 1.5 million female employees, the class action was not formed . The Supreme Court rejected all the three forms of evidence provided by employees:

1. Dr. William Bielby’s testimony- The Court assumed this was the only evidence about the "general policy of discrimination".            The uncertainty of whether the employment decisions at Wal-Mart might be determined by stereotyped thinking is the main weakness of Dr. Bielby’s testimony. The court stated, "[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking" is the essential question on which respondents’ theory of commonality depends. See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2553 (2011); see discussion in Part 2.      The court criticized Dr. Bielby’s social framework because Bielby testified with specific social facts in Wal-Mart, his research did not meet the standards of proving stereotyping and discrimination and he did not provide any verifiable method for measuring and testing the crucial variables. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of "Social Frameworks," 94 Va. L. Rev. 1715, 1747 (2008). 2. The statistical evidence displays that there are disparities between men and women at Wal-Mart about the pay and promotion.      The statistical analysis performed by a statistician Dr. Richard Drogin and a labor economist Dr. Marc Bendick, showed statistically significant disparities between men and women at Wal-Mart in the percentage of people promoted into management positions based on available workers and a lower percentage of women promoted in Wal-Mart than its competitors. The majority of judges required more "specific employment practice" to ties all the 1.5 million claims.      The dissent has a different view in that, they agreed with the District Court’s conclusion that Dr. Richard Drogin’s findings involving inter alia, job performance, length of time with the company, and the store where an employee worked were sufficient to raise an "inference of discrimination". 3. The anecdotal reports about 120 female employees in Wal-Mart’s of their discrimination experience.      The class in this case provided 120 affidavits out of 1.5 million claims, which was approximately one for every 12,500 class members. The court compared this with one account for every eight members in a precedent and decided it was too weak to support the company-wide discrimination in this case. Conclusion of the Court's logic: the class action should be formed by similar and specific experience of individuals in reality; several named employees can not represent all the other female employees as a whole; and the national statistical data about the class as a whole can not represent every individual female employees as well. Facing such a large group of class and considering the lasting influence, the court’s scrutiny is appropriated. The Dr. Bielby’s testimony was actually lack of persuasion and violated codes of practice. The number of affidavits was indeed too small comparing to the huge total number. The statistical research was the most convincing part, but it only pictured a macroscopic view of Wal-Mart. It would be good supporting evidence if it comes with some other more convincing ones.

Part 4: Criticisms and wider implications

     Dr. William Bielby’s expert report in Wal-Mart v Dukes has been the subject of prolonged criticism, accused of making subjective interpretations and "untested hypothesis" (see Mitchell, Gregory, John Monahan, and Laurens Walker, Case-Specific Sociological Inference: Metanorms for Expert Opinions, 40 Sociological Methods & Research 668, 669 (2011)) while presenting them as virtually unfalsifiable claims under the umbrella term of ‘social framework analysis’ In this sense, critics have described Dr. Bielby’s expert evidence as being "reduced to advocacy"(see Sorensen, Jesper B. and Amanda J. Sharkey, The Perils of False Certainty: A Comment on the ASA Amicus Brief in Dukes vs. Wal-Mart, 40 Sociological Methods & Research 635, 642 (2011)).

     Placing Bielby and Wal-Mart v Dukes in a wider context of discrimination class action cases it needs to be unveiled that Dr. Bielby has left doubtless traces of a history of expert evidence advocating for plaintiffs: "[i]n case after case, Dr. Bielby has submitted expert reports asserting that the defendant had a company-wide practice of discrimination against female or minority employees, and these reports have helped many plaintiffs obtain class certification and, eventually, settlement. Attorneys for Abercrombie & Fitch, Cargill, Home Depot, Merrill Lynch, UPS, and more than 50 other companies can attest to Dr. Bielby’s effectiveness as a plaintiffs’ expert" (see Mitchell, Gregory, John Monahan, and Laurens Walker, The ASA’s Missed Opportunity to Promote Sound Science in Court, 40 Sociological Methods & Research 605, 606 (2011)).

     Construing Dr Bielby’s recurrent findings of a ‘corporate culture of discrimination’ as unscientific, Monahan and Walker have claimed that Bielby’s expert evidence runs counter to the position adopted in Daubert, whereby "the adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge"connotes more than subjective belief or unsupported speculation […]. In order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation—i.e., "good grounds," based on what is known" (see Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579, 590 (1993) and Mitchell, Gregory, John Monahan, and Laurens Walker, Case-Specific Sociological Inference: Metanorms for Expert Opinions, 40 Sociological Methods & Research 668 (2011)).

     Such critics have however been met with strong disapproval by the nation’s leading Social Science association. Analyzing the respondent’s answer to Dr. Bielby’s study, the ASA explains that the core of the above mentioned criticisms relies on a distrust of ‘social framework analysis’ rather than on the underlying social science methods used by Bielby. In fact, ‘social framework analysis’ is a term of legal nature, not a sociological method, merely describing a "general [social science] research results . . . used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case" John Monahan et al. Essay, Contextual Evidence of Gender Discrimination: the Ascendance of "Social Frameworks," 94 Va. L. Rev. 1715, 1717 (2008)). In this sense, the debate about ‘social framework analysis’ largely ignores the underlying principled social science methods, which "already dictate when and how general findings inform specific cases" (American Sociological Association, Brief of Amici Curiae American Sociological Association and the Law and Society Association in Support of Respondents, 13 (2011)). The ASA consequently highlights that "proper social scientific research does not draw unsupported conclusions about specific cases based on general patterns in aggregate data, but rather formulates testable hypotheses based on existing research. Social scientists thus necessarily consider both "general" and "specific" information within a rigorous structure that acknowledges variable certainty" (American Sociological Association, Brief of Amici Curiae American Sociological Association and the Law and Society Association in Support of Respondents, 13 (2011)).). Admonishing the Court’s focus on ‘social framework analysis’, the ASA thus calls on turning responsiveness towards the central social science methods employed by Dr. Bielby.

     In fact, a more informed approach to William Bielby’s study unveils that “the methods through which he reached [his] conclusions are widely accepted and are the basis for research published in the top peer-reviewed social science research journals” (American Sociological Association, Brief of Amici Curiae American Sociological Association and the Law and Society Association in Support of Respondents, 9 (2011)).). Rather than being unreliable and unscientific, Dr. Bielby’s methods represent a textbook example of how “social scientists rely on in scientific research that is published in top-quality peer-reviewed journals” (American Sociological Association, Brief of Amici Curiae American Sociological Association and the Law and Society Association in Support of Respondents, 10 (2011)).), adopting “(1) strong reliance on established research findings, (2) careful review of relevant, case-specific statistical analyses, and (3) careful examination of all available qualitative and documentary evidence about the organization from a variety of sources regarding its culture and personnel practices” (American Sociological Association, Brief of Amici Curiae American Sociological Association and the Law and Society Association in Support of Respondents, 9 (2011)).).    

     Drawing from the above discussion, the Supreme Court in Wal-mart v Dukes might have set a dangerous precedent, prone to a misreading and thereby abating of social science methodologies.

Footnote Resources:

¹ Although the Supreme Court describes the reports as "anecdotal", the evidence can also be understood as individual reports . Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2545 (2011).

² For support for Bielby’s social framework, please see the discussion in Part 4.