X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In 1990, Brad Seligman wanted to bring an employment discrimination class action by arguing that a group of female employees were victims of unconscious bias, rather than explicit workplace discrimination. “We wanted to find a way of using a lot of interesting sociological research that had been done, but no one had used it before,” said Seligman, who was a partner with Saperstein, Mayeda & Goldstein at the time. But Seligman couldn’t find an expert witness willing to present the new work in court. So, on the recommendation of a sociologist who declined the job, he called Bill Bielby, an academic who had never set foot in a courtroom. Seligman was skeptical. “I was afraid that he was not going to be a very good witness because I frankly thought he would come across as very mousy,” Seligman said. “But Bill discovered something inside himself in that case.” The case was Lucky Stores, C-88-1467 MHP. With Bielby’s testimony as the crux of his argument, Seligman ended up winning a $107 million settlement that helped launch a new wave of discrimination class actions. Bielby has provided expert testimony in more than 50 cases — including the successful class certification motion on behalf of 1.6 million female Wal-Mart employees. He has helped plaintiff attorneys win about $1 billion in settlements. He is also the scourge of the employment defense bar, which says his entire field of expertise shouldn’t be allowed through the courtroom door. GROWTH INDUSTRY Bielby, a sociology professor at the University of Pennsylvania, has become his own growth industry. Plaintiff attorneys gladly foot his fee — about $300 an hour for consulting, twice that for depositions — for an average of about 100 hours per case. Bielby’s general thesis is that people are prone to stereotyping one another based on race, gender and age. He argues that without explicit and rigorously enforced hiring, evaluation and promotion procedures to avoid stereotyping, discriminatory employment practices inevitably ensue. In each of his class actions, Bielby’s testimony has followed the same basic strategy. He evaluates the company’s hiring and promotion policies, looks for patterns in the workforce representation and applies stereotyping theory from there. In an April report for plaintiffs in Roderick v. Cargill, 02086-DWF-AJB, for instance, he reviewed statistical analyses of the racial breakdown of a manufacturer’s workforce, along with testimony given by executives and a corporate history of Cargill’s company culture. His conclusion: Despite the absence of explicitly discriminatory policies, Cargill’s “strong culture � has features that are likely to create barriers to career advancement of African-American employees.” Without effective enforcement of antidiscrimination policies, African-Americans, who represent less than 5 percent of Cargill’s salaried workforce, were unlikely to advance, he wrote. The case, which is pending in Minnesota federal court, has yet to be certified as a class. Bielby’s process has been repeated in successful class certifications against a host of companies, from Home Depot to Morgan Stanley, in which judges have admitted the argument that wide-scale discrimination can arise from a lack of firmly entrenched promotion policies that are not explicitly discriminatory, but allow managers too much leeway for subjective judgment. Courts’ acceptance of the unconscious discrimination argument in certifying classes has been a boon to the plaintiff bar, since certification generally means a favorable settlement for plaintiffs. Since Lucky Stores, Bielby’s testimony has proved extremely difficult for the defense bar to disqualify or counter. In just one case, Bielby’s testimony was disqualified due to questions with evidence he used. In two cases, certification failed. Two more cases ended in trial verdicts, with one decision favoring the defense. In all other instances, Bielby’s cases have settled, often for large sums. “Bill asks the right questions and is able to assist courts in trying to sort through these cultural issues,” said Bill Lann Lee, a partner at Lieff Cabraser Heimann & Bernstein who was an assistant attorney general for civil rights in the Clinton administration. Lee has worked with Bielby in several suits and has retained him as a consultant in a gender-race discrimination class action against clothing retailer Abercrombie & Fitch. DON’T CALL HIM UNIQUE While Bielby’s expert witness practice accounts for much of his personal income, he still holds a day job at Penn, where he is set to begin a sociology professorship after 21 years at UC-Santa Barbara. The former American Sociological Association president continues to write books, teach classes and deliver lectures. Unlike his court reports, Bielby’s scholarship has a wide breadth. His published works include “The Structure of Occupational Inequality,” “Aging in the Television Industry” and, most recently, “Rock in a Hard Place: Grass-Roots Cultural Production in the Post-Elvis Era.” Often working with his wife, Denise, who is also a sociologist, Bielby uses controlled behavior experiments to explain discrimination and gender differences in the workforce. Bielby says that other than his taste for sitting through depositions, there is very little that distinguishes him from dozens of other sociologists who have been applying laboratory research to real-world discrimination studies for years. “I don’t think I’ve put together any sort of unique take on things,” Bielby said. I just have a combination of three or four fields,” including labor economics, psychology and organizational sociology. “I don’t like to think I’m unique,” he added. “Because if I’m unique, there’s not a body of work to draw on, which is charged sometimes” by defense lawyers. Barbara Reskin, a sociologist at the University of Washington, and Susan Fiske, a Princeton University psychologist, have done similar work to Bielby’s. But they are reluctant to testify as experts, whereas Bielby happily works on four or five cases a year. One byproduct of the expert witness side job: Bielby has made a six-figure donation to his alma mater, the University of Illinois. NEARLY UNTESTED IN COURT Defense lawyers and experts level a series of charges against Bielby, starting with the claim that he’s never been rigorously cross-examined — mainly because his testimony is often used to argue class certification motions that, if approved, end up leading to settlements. Efforts to disqualify Bielby’s testimony have been almost entirely unsuccessful. In June, U.S. District Judge Martin Jenkins of the Northern District denied a motion to strike Bielby’s testimony in the Wal-Mart case. In doing so, Jenkins affirmed plaintiff attorneys’ arguments that vagaries in Bielby’s work — Jenkins pointed out that Bielby is unable to determine the frequency of discriminatory incidents — should not disqualify it from class certification proceedings. With Bielby’s testimony so difficult to suppress, defense lawyers often turn to their own experts to counter him. Christopher Winship, a Harvard sociologist with expertise in employment discrimination, has testified in seven class actions since 1996 with the express goal of discrediting the plaintiff’s expert. “He specializes in just rebutting me,” Bielby said. Winship agrees that his entire body of class action experience has entailed contradicting Bielby. Bielby’s scholarship, Winship said, is “very reputable,” but his work does not translate from academia to the courts. “The legal system is distorting the scientific system,” Winship said. In one of the few cases where Bielby’s testimony did not result in class certification at the trial level, Winship, in a 1996 race discrimination case against Metro North railroad in New York, wrote that a company’s small number of African-American managers and use of “arbitrary and subjective” hiring procedures did not necessarily point to discrimination. He also argued that stereotyping could sometimes have a positive effect for minority workers. But the Metro North decision was overturned by the Second Circuit U.S. Court of Appeals, and the case eventually settled. While Winship has been hired to challenge Bielby point for point, David Copus, a former Jones Day partner who handled expert testimony in defense of Wal-Mart when the case began, challenges Bielby’s entire field. Now with Ogletree, Deakins, Nash, Smoak & Stewart in New Jersey, Copus has taken up the cause of disqualifying stereotyping testimony from employment class actions. In doing so, he has become Bielby’s most strident critic and is trying to publish an 800-page academic tome arguing that the courts should not admit testimony on unconscious discrimination. Copus’ main argument is that controlled interactions between strangers in a laboratory bear no real relationship to the way people interact in the workplace. He says people who know one another will judge not on stereotypes, but on personal knowledge. “What I argue is common sense,” he said. EXPERTS ON TRIAL For most employment defense lawyers, the problem with experts is bigger than Bielby or his field: They are uncomfortable with the entire expert witness industry. “A lot of these people will opine on whatever you want them to opine. They know where their bread is buttered,” said Brian Ashe, a partner at Seyfarth Shaw who defends employers in class actions. Paul Grossman, a partner at Paul, Hastings, Janofsky & Walker specializing in employment defense, makes exceptions for technical experts. “There are basically two broad categories of expert that plaintiffs use in employment litigation. Some are reputable experts who focus on hard science. � The other category is what I would roughly refer to as junk science,” said Grossman, who noted that he was not speaking about Bielby specifically, since his firm is involved in the Wal-Mart class action. A Bay Area defense lawyer who requested anonymity said that whereas experts in other legal realms testify on hard science — such as engineers pointing to specific mechanical issues in defective product litigation — experts like Bielby and Winship peddle a much softer brand of science, one whose conclusions are not based on empirical observation. “‘Integrity’ and ‘expert witness’ aren’t words that are often used in the same sentence. � They’re worse than lawyers,” said the attorney, who hires experts anyway. He argues that testimony on unconscious discrimination should not be admissible, but since it is, he and other lawyers bring their own experts. “I certainly use expert witnesses to show why this is junk science,” said Jeffrey Tanenbaum, a Nixon Peabody partner who defends employment class actions. “But I don’t rebut junk with junk. � I would tend to emphasize the hard science, and what is objective.” The debate over Bielby’s scholarship has an active life outside the courtroom. On Oct. 20, Copus delivered a paper titled “The Ecological Invalidity of Gender Stereotype Research” to the American Employment Law Council. While Copus read his paper, Bielby was making a presentation at the George Washington Institute of Public Policy called “Managerial Discretion, ‘Subtle’ Bias and the Politics of Expertise: Litigating Statistical Proof of Employment Discrimination.” Ultimately, say plaintiff and defense attorneys, the question is not so much whether an expert witness is right or wrong. Jack Lee, a partner with Minami, Lew & Tamaki who represents plaintiffs in class actions, says Bielby’s strength is his presentation. “It’s the way he comes across,” says Lee. “He is very well respected.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.