Moreover, the Court agrees with the Minnesota Court of Appeals’ reasoning in Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.Ct.App.2003) wherein the court found that the trial court abused its discretion by admitting Dr. Borgida’s testimony because the opinion was unhelpful to the jury. The court noted that “[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”…In addition, the court in Ray observed that “[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”…The Court agrees. E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010).
that from approximately February 2002 through the present, Bloomberg engaged in a pattern or practice of unlawful employment practices, including discriminating against Claimants based on sex/pregnancy by: (1) paying them less total compensation after they announced their pregnancy and returned from maternity leave; (2) demoting them in title or in the number of employees directly reporting to them; (3) diminishing their responsibilities and/or replacing them with male employees junior to the Claimants; (4) excluding them from management meetings and otherwise isolating them once they announced their pregnancy and returned from maternity leave; and (5) subjecting them to stereotypes regarding female caregivers when they returned from maternity leave….EEOC further claim[ed] that Bloomberg engaged in unlawful employment practices by retaliating against the named Claimants and other similarly situated female employees who protested the alleged unlawful sex/pregnancy discrimination by reducing their compensation, criticizing their performance, reducing their job opportunities, and threatening to terminate them.
So, let’s consider the proposed testimony of Dr. Borgida and the court’s ruling and decide whether we agree with the conclusion of the court listed at the top of this post.
As the United States District Court for the Southern District of New York noted in its opinion in Bloomberg:
Dr. Borgida is a professor of psychology and law at the University of Minnesota (Twin Cities) and has a Ph.D. in psychology with a specialization in social psychology and psychology and law from the University of Michigan. Dr. Borgida engaged in what is called a “social framework analysis,” which “uses general conclusions from tested, reliable, and peer-reviewed social science research as a context for educating fact finders about the case facts at hand.”…The analysis “provides an assessment of general causation in a research area in order to inform the fact finders about more specific causation issues associated with a particular case.”…In conducting his analysis, Dr. Borgida reviewed several deposition transcripts as well as Bloomberg personnel materials.
Based upon his review of these materials, Dr. Borgida concluded that
the stereotypes about employees who are mothers and/or pregnant more likely than not influenced the perceptions, evaluations, and decisions about them at Bloomberg. The cultural and organizational context at Bloomberg more likely than not activated the gender stereotype about mothers as less competent and as less agentic and less committed to their careers. Given the subjectivity, discretion, and lack of accountability in the Bloomberg decision making process, stereotypic perceptions more likely than not influenced employment decisions about employees who are mothers and/or pregnant.
So, this was social framework evidence, a topic that I have discussed in a couple of prior posts, including my post about an excellent essay, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), by University of Colorado School of Law Professor Melissa Hart and Marquette University Law School Professor Paul Secunda. Courts have admitted and excluded such evidence for a variety of reasons, and I leave it up to readers to review the entire opinion of the United States District Court for the Southern District of New York in Bloomberg and this essay to see all of the reasons why the court was troubled by Dr. Borgida’s proposed testimony and why other courts have reached different conclusions.
All I want to address is the reasoning used by the court that led this post. Under Federal Rule of Evidence 702, expert opinion testimony is only admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” The court found that Dr. Borgida’s proposed testimony did not meet this standard because, as noted,
“[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”…In addition,…“[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”
Really? So, the average juror watches “Modern Family” and fair and balanced news broadcasts, and all of a sudden he or she is an expert on gender stereotypes and discriminatory treatment in the workplace such that testimony from an actual expert in the field wouldn’t help the juror? Great! So, I think we can also assume that the average juror watches one of the CSIs, so who needs testimony by crime scene investigators? That testimony wouldn’t be helpful! And, I’m sure the average juror watches “Bones,” so there should never be any need for testimony by forensic anthropologists.
And while we’re at it, I’m certain that most people have seen one of the Law & Orders, so who needs law school and the bar exam? You want to go to marriage counseling? Why? If “Modern Family” is your go-to source for gender discrimination information, why shouldn’t it be your source for how to be a good spouse and parent? Heck, double it up with “The Middle,” and you get a full hour of great advice a week.
In all seriousness, it seems to me that the United States District Court for the Southern District of New York made three primary assumptions in Bloomberg, none of which are defensible: (1) We live in an enlightened world where everybody recognizes that gender discrimination is prevalent; (2) sitcoms and news reports are reliable sources of information for real world issues; and (3) the average person has a good enough grasp of gender issues such that testimony from a bona fide expert would not be helpful to jurors hearing a gender discrimination case. Do you agree?