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Employee Rights and Employment Policy Journal
Can I Get A Witness? Challenges of Using Expert Testimony on Cognitive Bias in Employment Discrimination Litigation
In this article I describe the challenges involved in relying on scientific expert testimony on cognitive bias scholarship in litigation alleging gender bias in employment settings. First, I review the research scholarship on cognitive bias that is most relevant to employment discrimination litigation, involving how stereotypes shape decision-making in discretionary and subjective personnel systems. Second, I describe criteria trial judges are supposed to apply to determine the admissibility of expert scientific testimony about cognitive bias. Third, I describe the emergence over the past decade of increasingly intense efforts by opposing counsel to attack an expert's testimony on cognitive bias, through a "Daubert challenge" to its admissibility, and through vigorous cross-examination in deposition and at trial. I conclude with recommendations to social scientists to help them decide when to participate as an expert in discrimination litigation, and under what circumstances. I also offer recommendations to attorneys about when not to consider relying on social science testimony about cognitive bias in discrimination litigation.
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