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199 9 Educating Judges and Juries about Masculinities The Necessity of Experts to Counter Common Sense All lawyers know that expert testimony is necessary to help fact finders and judges understand the science in a patent case, or whether a surgeon followed a procedure that is acceptable to the surgical community in a medical malpractice case. But many lawyers and judges assume that fact finders and judges can deploy their own common sense, without aid from expert testimony, when deciding cases brought under the antidiscrimination laws. The claim is that because all members of society make judgments in their daily work lives about the behaviors and motivations of others, fact finders and judges should also employ their common sense in determining whether the defendant discriminated against the plaintiff because of the individual’s sex, gender, or race. The assumption is that deciding whether a person has discriminated against another on the basis of her protected characteristics is a simple calculus. But research demonstrates that this decision is not at all simple (Fiske and Borgida 2011). There is established and increasingly more complicated science behind human motivation, intent, and behavior (Banaji and Greenwald 2013; Greenwald and Banaji 1995; Kimmel 2013; Greenwald et al. 2009). In essence, the view that antidiscrimination law needs no expert testimony operates on assumptions, often hidden or unconscious , about the prevalence of discriminatory decision making in workplaces (Weiss 2011; Calloway 1994). These assumptions include views that we live in a postracial society and that sex discrimination is a thing of the past. On the basis of lived experience, each juror brings assumptions into the jury box. Judges and lawyers make assumptions about the meanings and causes of certain employer behaviors that may affect lawyers ’ strategies, the way judges rule on motions and instruct juries, and the way fact finders decide whether discrimination has occurred. Common sense can lead lawyers, judges, and juries astray. Masculinities experts must explain how the plaintiff’s mistreatment in the workplace 200 | Educating Judges and Juries about Masculinities is linked to gender, combined with race and other factors. This testimony is often crucial to the courts’ and juries’ understanding of the workplace and the way they should draw inferences in a discrimination suit. Testimony of masculinities research by a qualified expert sociologist or social psychologist is admissible, relevant, and highly probative . Although the Supreme Court expressed some hesitancy about the use of social framework evidence in Wal-­ Mart v. Dukes (2011), it is still possible to use reliable expert testimony in these cases to get to the truth. Admissibility of Expert Testimony The trial court acts as a responsible gatekeeper to assure exclusion of unreliable expert testimony (Advisory Committee Notes 2000; Kumho Tire Co. Ltd. v. Carmichael 1999; Daubert v. Merrell Dow Pharmaceuticals , Inc. 1993). Federal Rule of Evidence 702 governs the admissibility of expert testimony; it assures knowledge and expertise of the expert, use of accepted principles and methodology, that the testimony is based on sufficient facts, and that the expert has applied accepted principles to the facts (Federal Rules of Evidence 2011 Amendments, Rule 702). The rule permits the use of testimony by sociologists and social psychologists who rely on peer-­ reviewed articles and methodologies acceptable to their professions (Tyus v. Urban Search Management 1996) (overturning the lower court’s failure to admit a sociologist’s expert testimony about the effect of television advertising on African American viewers in a housing discrimination case). Moreover, the 2000 amendment to Rule 702 did not alter “the venerable practice of using expert testimony to educate the fact finder on general principles” (ibid.). For this generalized type of expert testimony, the party offering the expert merely needs to demonstrate that (1) the expert is qualified; (2) the testimony addresses a subject matter on which an expert can assist the fact finder; (3) the testimony is reliable; and (4) the testimony fits the facts of the case (ibid.). Given these standards, expert testimony by reputable, well-­ trained sociologists or social psychologists who are engaged in empirical or ethnographic research or who use other social scientists’ peer-­ reviewed empirical or ethnographic research to reach conclusions about the pres- Educating Judges and Juries about Masculinities | 201 ence of masculine structures, performances, or practices in workplaces in a Title VII suit will normally be reliable under Rule 702 and helpful to the judge and jury. Social Framework Evidence In accordance with the standards of Rule 702, if properly instructed by the judge, jurors should receive expert social framework evidence...


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MARC Record
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