Social Framework Studies Such as Women Don’t Ask and It Does Hurt To Ask Show Us the Next Step Toward Achieving Gender Equality—Eliminating the Long-Term Effects of Implicit Bias—but Are Not Likely to Get Cases Past Summary Judgment
Lawyers and judges long have relied on outside evidence—usually studies or empirical research—to help them better understand the impact or meaning of the facts in certain cases. In employment cases, lawyers have used studies that show statistical variance in hiring or promotion between men and women to prove discrimination. They have used studies that talk about implicit bias, the kind of bias that we apply without even knowing we are biased, perhaps the kind of bias we apply even when we are doing our best not to be biased, to understand that comments like “You should go to charm school” indicate sex-based stereotyped thinking. But they have not successfully used (and few appear even to have attempted to use) recent studies that tie together actions over a long period of time with a seemingly unrelated adverse employment action. These connections are much less obvious than those between “charm school” and sex-based stereotyping. They require a court to look at the long term cumulative effects of bias—not an if-then analysis but an understanding of the whole employment relationship, as explained with the help of these and related studies.
This Article focuses on two studies (really one study and its related predecessor) and argues that they change the way we should look at the difficult individual disparate impact case, especially when combined with other social science research. The first study shows what many people accept from experience—that women simply do not negotiate on their own behalf. The follow up study, much more important for purposes of this Article, shows that women who do negotiate might get what they negotiated for, but end up being perceived negatively thereafter by both the men and the women they work with. In a case where the effects of discrimination manifest over time and cannot be tied directly to a specific employment event, convincing a judge to use the study to fill in the gaps in evidence and let a case past summary judgment could be crucial to closing the gender gap.
Unfortunately, although juries might make good use of the studies, judges who tend to grant summary judgment in discrimination cases are not likely to be persuaded that the studies, even paired with other illuminating studies, provide a sufficient “social framework” to get a case to a jury without significant and recent witness or documentary evidence. Employment lawyers will not risk the expense to hire the expert necessary to make the argument. The studies will have little impact, even though they present essential information that should cause both employers and employees to question D6and perhaps modify their decisions and motivations.