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On June 21, 2004, the U.S. District Court for the Northern District of California certified a class of approximately 1.5 million current and former female employees in more than 3,500 Wal-Mart stores nationwide. That decision provides a forceful demonstration of the power of junk science when artfully used by plaintiffs in employment discrimination lawsuits. According to the court, testimony from plaintiffs’ gender stereotyping expert witness strongly supported plaintiffs’ claim that the company’s excessively subjective employment practices are likely to be biased against women because such practices provided fertile ground for discriminatory gender stereotyping. Unfortunately, the court did not discuss the scientific evidence, if any, underlying the expert’s testimony. Had the court examined that scientific evidence, the court would have found little or no support for the expert’s conclusion. A thoughtful analysis of the science underlying plaintiffs’expert in the Wal-Mart case would have demonstrated that such testimony did not pass the admissibility standards laid down by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). First, the court would have encountered the consensus that the distinction between objective and subjective decision-making standards is meaningless. For example, in 1991, the National Research Council published a comprehensive analysis of performance appraisal systems in anticipation of the adoption by the federal government of a merit pay plan for civil servants. Merit pay for federal employees was a revolutionary concept at the time, and the National Research Council appointed a high-powered Committee on Performance Appraisal to prepare detailed recommendations for the federal government. Among the most vigorously discussed question was whether a merit pay system could be made objective. The committee reported: “When considering measures of individual job performance, there is a tendency in the literature to characterize some measures as objective and others as subjective. We believe this to be a false distinction that may create too much confidence in the former and an unjustified suspicion about the latter. Measurement of performance in all jobs, no matter how structured and routinized they are, depends on external judgment about what the important dimensions of the job are and where the individual’s performance falls on each dimension. Our discussion avoids the artificial distinction of objective and subjective.” George T. Milkovich and Alexandra K. Wigdor, eds., Pay for Performance: Evaluating Performance Appraisal and Merit Pay, from Committee on Performance Appraisal for Merit Pay, National Research Council (Washington: National Academy Press, 1991), 48. Other scholars have reached the same conclusion. “The distinction between subjective and objective” job performance criteria “is problematic and somewhat arbitrary,” according to one group of researchers. J. Kevin Ford, Kurt Kraiger and Susan L. Schechtman, “Study of Race Effects in Objective Indices and Subjective Evaluations of Performance: A Meta-analysis of Performance Criteria,” Psychological Bulletin 99 (1986): 331. As most researchers have concluded, the “distinction between ‘objective’ and ‘subjective’ measurement is neither meaningful nor useful in human performance” evaluation. Frederick Muckler and Sally A. Seven, “Selecting Performance Measures: ‘Objective’ versus ‘Subjective’ Measurement,” Human Factors 34 (1992): 441. According to Muckler and Seven, all human performance “is necessarily filled with subjective elements, whether in selecting measures or in collecting, analyzing, or interpreting data � The distinction between objectivity and subjectivity is not a useful way of distinguishing among human performance measures. The human being — and his or her attendant subjectivity — will always be a part of”measuring human performance. Second, perhaps because no legitimate distinction between subjective and objective decision-making exists, no scientific evidence supports the conclusion that excessively subjective decision-making promotes stereotyping and bias. Ford, Kraiger and Schechtman published in 1986 the first major analysis seeking to compare the race effects in subjective supervisory ratings and objective measures of job performance. Ford, Kraiger, Schechtman, “Study of Race Effects,” 330-37. They found that differences in subjective supervisory ratings of black and white employees “were virtually identical” to differences in objective measures of job performance, thus failing to find any rating bias attributable to the subjective nature of the supervisory ratings. In the context of age bias, a 1989 analysis “showed little evidence that the type of performance measure” had any impact on the evaluations of older workers. Glenn M. McEvoy and Wayne F. Cascio, “Cumulative Evidence of the Relationship Between Employee Age and Job Performance,” Journal of Applied Psychology 74 (1989): 14. In 1992, an analysis reviewed the results of a number of studies and concluded that the “implications of these comparisons between subjective and objective measures of performance also appear contradictory � The evidence on � differences in subjective and objective criteria suggests further research is needed” before any reliable conclusions can be drawn. Joseph J. Martocchio and Ellen M. Whitener, “Fairness in Personnel Selection: A Meta-Analysis,” Human Relations 45 (1992): 493-94. In 1995, Bernardin, Hennessey, and Peyrefitte “examined a common expert witness theme”in equal employment lawsuits that “bias in the form of ethnic, age, or gender differences in personnel decisions” can be attributed to the subjective nature of the performance appraisal systems under attack. H. John Bernardin, H.W. Hennessey Jr. and J. Peyrefitte, “Age, Racial, and Gender Bias,” 63-77. Those authors found “[f]ew studies have investigated” whether the subjectivity of performance evaluation measures promotes ethnic, age, or gender bias in those evaluations. The results of studies that have investigated the issue, according to Bernardin, Hennessey and Peyrefitte, “do not support the position that the more objective or specific criteria for assessment will result in smaller differences between groups based on age, gender or ethnic classification.” At best, they declare, the results of empirical research are “equivocal.” They bluntly conclude that the “plethora of ‘hired guns’” used by plaintiffs in employment discrimination lawsuits have no reliable scientific support for their oft-made claims that subjective employment practices breed stereotype-induced bias. After an extensive review of research findings concerning the extent to which subjectivity of performance appraisal systems may foster race or gender bias, R.D. Arvey and Kevin R. Murphy concluded in the 1988 Annual Review of Psychology that “there is no scientific support for the opinion that the format or specificity of appraisal systems has a significant effect on race or gender bias in performance ratings.” Arvey and Murphy, “Performance Evaluations in Work Settings,” Annual Review of Psychology 49 (1998): 147. In 2003, Bernardin and Hennessey published the most recent research on the relationship between subjectivity and bias in personnel decisions and reached the same conclusion. H.W. Hennessey and H. John Bernardin, “The Relationship Between Performance Appraisal Criterion Specificity and Statistical Evidence of Discrimination,” Human Resource Management 42 (2003) 143. Unfortunately, the court in the Wal-Mart class certification decision did not cite any of the research noted above. Perhaps Wal-Mart did not call that research to the court’s attention. Whatever the reason for the court’s reliance on the testimony of plaintiffs’ stereotyping expert, the outcome of the case highlights the need for an employer to make a determined attack on the science underlying such testimony. Copus is of counsel to Ogletree, Deakins, Nash, Smoak & Stewart of Morristown. He has recently completed a book examining the science behind stereotyping expert testimony in employment discrimination lawsuits. If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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