Social Psychology Expert Not Allowed to Opine on Racial Harassment

This is an employment discrimination case arising out of alleged deficiencies in Defendants' response to racist language directed by middle-school students with behavioral disabilities toward their teacher, Plaintiff Robert Bender.

Defendants filed a motion to exclude Plaintiff's expert witness, Dr. Peter S. Glick. According to his report, Glick would offer "'social framework' testimony to inform case decision-makers about empirically validated principles concerning how and when stereotypes and bias result in discrimination toward others depending on their social group membership (e.g., race)."

Social Psychology Expert Witness

Dr. Peter Samuel Glick is an American social psychologist and the Henry Merritt Wriston Professor in the Social Sciences at Lawrence University. He is known for his research on gender stereotyping and ambivalent sexism.

Glick earned his Ph.D. in social psychology from the University of Minnesota.

Want to know more about the challenges Peter Glick has faced? Get the full details with our Challenge Study report.

Discussion by the Court

Glick's testimony would revolve around, among other things, research showing: (a) that social and organizational norms affect whether and when individuals express bias; (b) the circumstances in which bias will be expressed overtly versus subtly or covertly (masked by pretext); and (c) how specific stereotypes lead to different forms of prejudice. In his words, "scientific research reveals a much more nuanced picture of how stereotypes and bias work, including the circumstances that release versus inhibit biased behavior." The topic headings in the main section of his report include the following: "Scientific Research on Stereotyping and Discrimination;" "Research Demonstrates When and Why Bias Tends to Occur;" "Basic Human Tendencies Related to Understanding Prejudice;" "Defining and Understanding Racism;" "Racial Stereotypes;" "How Stereotypes Bias Perception;" "Changing Norms Regarding Open Expressions of Racism;" "Modern, Averse Racism: Using Pretexts to Justify Prejudice;" "Lacking Empathy for Black People: Whites Don't Feel Your Pain;" "Authorities and Organizational Norms Affect Whether People Engage in Prejudiced Behavior;" "Negative Reactions to 'Complaints' About Discrimination;" and "Racial Harassment's Effects on Mental and Physical Wellbeing."

The Court will assume without deciding that there are cases where Glick's testimony would be admissible. Even so, the problem for Plaintiff is that Glick's opinions fail to address the idiosyncratic facts and circumstances presented here. This is not a typical race discrimination case in which, say, an employee or applicant alleges that bias played a role in an adverse employment or hiring decision and the factfinder must decide whether the employer's race-neutral reason for the decision is pretextual. In those types of cases, Glick's testimony about topics like aversive racism (i.e., using pretexts to justify prejudice), the history and evolution of racism, and the impact of stereotypes on perception would have a nexus to the facts and issues in dispute. There is no such nexus here because the conduct in question was overtly racist (the chronic use of the N word) and was perpetrated by third parties (i.e., students), as opposed to decision-makers. Thus, this is not a situation where jurors might need to understand (to borrow Glick's words) the "nuanced picture of how stereotypes and bias work, including the circumstances that release versus inhibit biased behavior." There is simply no nuance here—or, at least, not with respect to whether the language used against Plaintiff in the classroom reflected racial bias or animus. It clearly did. Accordingly, the opinions expressed in pages 10 through 26 of Glick's report are irrelevant and will not "help the trier of fact to understand the evidence or to determine a fact in issue" and do not "reflect a reliable application of the principles and methods to the facts of the case."

Glick's report appears to come somewhat closer to the mark when he offers opinions about how "Authorities and Organizational Norms Affect Whether People Engage in Prejudiced Behavior." In a vacuum, the title of this section suggests a reasonably close connection to the facts of the case given that Plaintiff's hostile work environment claim revolves around Defendants' alleged failure to take appropriate action in response to the racist language directed by students toward Plaintiff. Upon closer inspection, however, it becomes clear that Glick's opinions are again too far removed from the issues in dispute to be admissible. The source of the racist language and conduct here was students who have such severe behavioral issues that they cannot function in normal classroom environments. This is a unique subset of the general population. By contrast, Glick's opinions about the impact of "organizational norms" on prejudiced behavior are based on research and studies involving the United States workforce generally or subgroups like college students, employees of U.S. corporations, nurses, and federal employees. There is nothing in Glick's report to suggest that students with behavioral disabilities would respond to "organizational norms" in the same way as the groups at issue in the studies he cites. To the contrary, the fact that these students cannot function in normal classroom environments seems to show that they cannot respond appropriately to social norms and expectations.

Similar analysis applies to the section of Glick's report entitled "Negative Reactions to 'Complaints' About Discrimination." At first glance, this section might appear relevant given Plaintiff's allegation that Defendants did not respond adequately to the student-on-teacher racism that Plaintiff experienced. But this portion of Glick's report is actually geared primarily toward retaliation. This is not a retaliation case. Moreover, and more generally, this portion of Glick's report essentially expresses the view that people who hold racial biases tend to react defensively and/or skeptically to claims of discrimination. In the context of Plaintiff's unique hostile work environment claim, this testimony would do nothing more than tell jurors to doubt the credibility of Defendants when they testify about how and why they reacted to Plaintiff's claims of discrimination. Such testimony is inadmissible.

The final section of Glick's report, which is entitled "Racial Harassment's Effects on Mental and Physical Wellbeing," summarizes research on the physical and mental health impacts of racial harassment. This research shows that people who are subjected to racial harassment are more likely to commit suicide, experience post-traumatic stress disorder, and otherwise experience negative physical and mental health symptoms. The problem with this aspect of the report is that Glick has not personally evaluated Plaintiff, nor is he relying on any records or information about Plaintiff specifically. Thus, there is no way for the Court (or a juror) to draw any connection between the research Glick summarizes and Plaintiff's personal circumstances.

It would be the equivalent of allowing an orthopedic surgeon who has never evaluated the Plaintiff to testify in a car accident case that people sometimes suffer injuries in car accidents ranging from broken bones to paralysis to brain injuries. Without a connection to the facts of the case, such expert testimony is inadmissible.

Held

The Court granted Defendants' motion to exclude Dr. Peter Glick's testimony.

Key Takeaway

The Court must make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.

Case Details: