Taking Out the Garbage
The scenario is all too familiar. A plaintiff in a harassment or discrimination lawsuit puts an "expert" witness on the stand to testify that in his or her opinion, the defendant employer discriminated against the plaintiff, or that a sexually hostile work environment existed, or the employer's policies or procedures were somehow inadequate. Such a witness, often addressed as "Doctor" and with an impressive-sounding resume in tow, usually will impress jurors, who might believe that a form of science must underlay the expert's conclusions. In most such cases, however, the so-called "expert" is just reciting the plaintiff's lawyer's closing argument, albeit interspersed with pseudoscientific lingo.
Experts in employment lawsuits today are not limited to economists, accountants, or mental health professionals. A new cadre of human resources "experts," social scientists, and "discriminatologists" have begun to appear in employment lawsuits. Their contribution to the case is often more in the manner of partisan argument than scientific or technical expertise, however. When they do attempt to base their opinions on surveys or experiments, close scrutiny of the data often reveals it to be the product of little more than "junk science." Unfortunately, trial judges in many cases are prone to allowing this sort of testimony, relying on cross-examination by the opponent of the evidence to illustrate its flaws to the jury.
Social science experts should not be allowed to testify that discrimination or harassment existed based on the results of social science surveys or studies. Inadequate sample size, sample bias, and definitional problems are almost always present in these studies, seriously undercutting the validity of these studies. Unfortunately, these defects are not likely to be obvious to most jurors - or even to many lawyers and judges. Unless lawyers are vigilant in moving to exclude this sort of testimony and judges are conscientious in exercising the "gatekeeper" role vested in them by the Supreme Court in Daubert, the jurors are likely to believe in all sorts of junk science just because the doctor said so.
In two recent cases, however, the courts have refused to admit this sort of testimony. They have taken the time to examine it closely and found that it is neither the product of legitimate science nor the type of evidence that is helpful to a jury. These cases provide a model that courts might follow if they wish to scrutinize dubious expert testimony rather than just "letting it all in."
This article appeared in the Summer 2004 issue of the Employee Relations Law Journal.