I. INTRODUCTION AND SCOPE OF THE ARTICLE Employment discrimination class actions succeed in being certified only if plaintiffs can demonstrate that the alleged injuries to putative class members have a common source. While allegations of a "pattern and practice" of discrimination are a step in that direction, courts usually require more than mere averments in order to certify a class. Additionally, statistical evidence alone often is insufficient to demonstrate that any disparity between favored and disfavored groups reflects a policy or practice of discrimination that is commonly applied. Plaintiffs therefore frequently turn to social psychologists and other social science experts to testify that seemingly distinct and independent employment decisions emanate from a company-wide culture of discrimination. These experts rely on social framework evidence to weave together decisions of different managers, in various locations, regarding employees in different occupational groups with respect to decisions that run the gamut from hiring to termination, into a coherent "pattern or practice" of discrimination. Thus, in Dukes v. Wal-Mart Stores, Inc., (1) the plaintiffs succeeded in demonstrating that a class of more than a million female employees, supervised by tens of thousands of managers throughout the nation, were subjected to a common culture of stereotyped decision-making, with respect to pay, promotion, and hiring, emanating from a common source. (2)
