Trying a race discrimination case can be challenging for attorneys and experts. Much of the success of these cases turns on discrimination expert witness opinions and testimony, and savvy litigators should pay attention to what prominent experts have to say on the matter in terms of guidance. This article examines a well-known expert’s opinions and provides assistance to discrimination attorneys in civil cases.
Many expert witnesses have discussed the best ways to try discrimination lawsuits and have offered practical tips for today’s litigators. This article offers advice from expert witnesses who have spent a great deal of time analyzing the best way to succeed in racial discrimination cases, based upon what is know as the Wellman Framework.
David Wellman, a well-known sociologist, author, and expert witness on matters of race and social science initially found himself in a conundrum when he began doing extensive investigations on racial discrimination. When his work began, he felt that he, as a white man, should not be conducting the research because the outcomes of such research were affected by the fact that he was an outsider and could only take the perspective of a white man. See Alfonso R. Latoni-Rodríguez, “An Expert Witness on Race and Tenure: Wellman Educates the Court,” American Sociological Association: Footnotes, Nov. 2001. At the time, Wellman argued that “white sociologists should not do race… and that scholars of color were the ones called upon to determine the issues of research on race relations in the United States.” Id.
Since then, however, Wellman has changed his position and has instead advocated for a framework that experts and attorneys should use when conducting investigations and trying to determine whether race discrimination took place. After some 30 years of research, Wellman established some guidelines to help attorneys determine whether a particular expert or study is reliable, or whether those opinions have been affected by a (potentially unconscious) bias that would skew the results.
The beauty of Wellman’s framework is that it allows both experts and attorneys to question the entirety of an opinion, study, or set of data, to determine whether it should be considered valid by a court or jury. Therefore, this framework helps experts and attorneys in myriad ways: First, it points out what a good piece of expert research should encompass, in order to be considered a valid (or “feasible,” in Wellman’s view) study on race discrimination. Second, Wellman’s outline provides a way for attorneys to screen prospective expert witnesses to see if their views include all of the components that Wellman discusses as being necessary to a legitimate opinion. And finally, Wellman provides guidance for experts regarding what their testimony and/or opinions should cover, and for attorneys in terms of what their cases should consist of. See generally id.
Wellman’s framework, which is used for employment discrimination cases but can be modified for other types of discrimination suits as well, asks attorneys and employment expert witnesses to investigate nine issues, both in assessing an opposing attorney and/or expert’s theories and in preparing one’s own.
Wellman’s framework consists of the following:
“(1) Is the decision supported by credible evidence?
(2) Are the criteria (for hiring, firing, or promoting) applied consistently among people of different races?
(3) Is there an inconsistency? Does it favor white Americans over people of color?
(4) Does the explanation for the contested decision change when it is challenged?
(5) Are there statistical data to support the claim of unfair treatment based on race?
(6) Did the employer [or other party] abide her/his own rules and standards for granting jobs and promotions [or housing, education, etc.]?
(7) Did the employer [or other party] properly and carefully consider the employee’s [or charging party’s] evidence and claims?
(8) Did the employer follow progressive discipline in instances of firing an employee?
(9) Did the employer [or other party] follow her/his own stated policies for addressing the vestiges of racial inequality in the organization?” Id.
According to Wellman, if the case and data being examined lead an attorney and/or expert witness to conclude that the answer to questions 1, 2, 6, 7, 8, and 9 are “no” and the answer to questions 3, 4, and 5 are “yes,” then it is safe to conclude that an employer’s (or other party’s) decision was, in fact, racially biased and/or motivated.
As an expert witness, Wellman offers a great deal of assistance to other experts and attorneys who try race discrimination cases. Specifically, his decades of careful analysis implicate any social science study that makes a conclusion on racial disparities. More importantly, perhaps, as one Director of the Minority Affairs Program at the American Sociological Association has pointed out, “[Wellman] indicated that people were astonished with the amount of sociological evidence, understanding, knowledge, and research on race…. [H]e was able to successfully debunk the popular myth that ‘sociology tells things everyone knows….’ [H]e [delivered] to the court lessons in the sociology of science—how to ask questions; the scientific method; and so forth;…he was struck by how naïve the law can be about human relationships, particularly, regarding race.
Wellman has been successful in demonstrating to the court that his analyses are not merely common sense. The jury was constantly surprised by sociological evidence on everyday racism. Wellman can appropriately take pride in putting sociology into practice and showing how useful it can be.” Id.
Many attorneys and experts have struggled with race discrimination cases in terms of proving whether or not it took place in a particular situation. Wellman’s framework provides a useful tool for both litigators and experts to apply in determining whether the data in a given case indicates a case of race discrimination. Practitioners in this field can utilize these tools in conducting their own investigations and, ultimately, in successfully persuading a jury or court that a decision made by an employer or other party was, in fact, racially biased.
This article is lovingly dedicated to the memory of Samvedna Dean.
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