Contents

1. RAS Expertise and Services
2. Obtaining RAS Services
3. Procedures for the Review of Tests and Other Selection Procedures
4. Opposing and Defending Expert Admissibility
5. Web Resources

B. Services Provided by Research and Analytic Services

1. RAS Expertise and Services

Research and Analytic Services (RAS) was primarily established to provide analytic support for Title VII, EPA, and ADEA class and pattern or practice cases in litigation and enforcement. The unit was originally created as one of three divisions in the Office of Systemic Programs in 1979. Since then, RAS has provided "case-in-chief" experts to testify at trial as well as both consulting and rebuttal experts. The primary focus of RAS has always been on large, complex, class cases and charges.

RAS senior staff typically consists of social scientists, such as psychologists, economists, statisticians and social science analysts; the support staff primarily consists of research and statistical assistants. All of the senior staff have one or more advanced degrees and the majority of them have Ph.D.s. In addition to the specialized areas of expertise of the RAS staff, most are highly skilled in obtaining, creating, processing and managing large, computerized data bases. RAS staff are also highly skilled in analyzing data and in presenting their results through graphs and charts, expert reports, and deposition and trial testimony.

2. Obtaining RAS Services

Before developing a formal request for expert or other technical services, begin the process with preliminary discussions with the Director of RAS as to (1) what types of experts or other support might be needed for a case or charge, (2) what time-frames might be expected, and (3) what costs might be incurred. These discussions should occur at the earliest time possible, irrespective of whether or not RAS would be expected to provide the expert or other support services. For years, RAS had a requirement that requests for expert services in support of litigation be discussed with RAS at least three months prior to the close of discovery. The principle of discussing analytic proof and support issues with RAS at the earliest possible time is still good practice. This advice is particularly true for the development of interrogatories and requests for the production of documents.

After the initial discussions, a Regional Attorney, Assistant General Counsel, or field office manager must submit a written request to the Director of RAS for all services expected to require more than 16 hours of support. Only those requests requiring less than 16 hours of assistance can be accepted orally. Written requests for RAS services for either cases or charges must (1) state the name of the defendant or respondent; (2) provide an outline of the legal issues or theories; (3) estimate the time-frames for developing the analytic proof; and (4) indicate any due dates, such as those already set by the court. The remainder of the request should be devoted to presenting the basic facts of the case or charge and suggesting how RAS might most effectively contribute to the enforcement effort.

After receiving the request for expert or other services, RAS will discuss the legal issues and possible analytic approaches to the case or charge with the attorneys and/or investigators assigned to it. Based on RAS' (1) understanding of the case or charge; (2) an initial assessment of the availability of RAS staff; (3) an evaluation of the financial requirements for the case or charge; and (4) a review of the expected time-frames, RAS will develop a Memorandum of Understanding (MOU). This document will be developed by RAS in coordination and consultation with the requesting legal or enforcement unit. The MOU will (1) identify the RAS expert or experts to be assigned to the case or charge, (2) specify the tasks that they or the support staff are to perform, (3) identify the records and other information that are to be obtained or created for the experts, and (4) specify tentative steps and completion dates for each of the major sub-tasks for the requested services. Before any work is to be done by RAS, the MOU must be signed by the Regional Attorney, Associate General Counsel or field office manager and returned to RAS. If there are any major changes in expectations or time-frames and in required information or resources after the initial discussions, the effect of these differences will have to be discussed and resolved prior to the development of an initial or, perhaps, subsequent MOU.

The basic intent of this guidance is to help ensure that legal and enforcement units requiring the development of analytic proof begin the planning for this process at an early stage in the case or charge and that both RAS and the legal or enforcement unit will know what to expect from each other during the development of the case or charge.

3. Procedures for the Review of Tests and Other Selection Procedures

Attorneys and investigators should consult the industrial/organizational psychologists in RAS when employment tests or other selection procedures are at issue in a case or charge. These include any selection procedures which appear to have had an adverse impact against members of a protected group. Typical examples include written tests, physical ability tests, structured interviews, and other procedures or criteria used to rank or exclude applicants.

The psychologists in RAS are available to consult with EEOC staff regarding the validation of selection procedures and statistical methods for determining adverse impact. The selection procedures must be validated when adverse impact has been demonstrated. The RAS psychologists can also consult on disparate treatment resulting from the use of tests. They work with attorneys as consultants and expert witnesses during employment litigation and review adverse impact data and test validation studies during EEOC investigations.

RAS psychologists review charges that arise from the use of tests or other selection procedures. There should be an initial review of available data to determine whether the test has an adverse impact against a protected group. In a multi-stage selection process, each individual component as well as the total selection procedure should be examined for adverse impact.

For a given charge or case, the requesting office may, if it prefers, perform its own statistical adverse impact analyses. All EEOC offices should have copies of the EEOSTAT software package of statistical programs related to employment discrimination. The AVAIL and SQUARE programs contained within EEOSTAT provide simple statistical analyses of data from class-based discrimination claims. In most situations involving the use of tests, where either applicant flow data or testing pool data are available, either the SQUARE or AVAIL procedures might be used, where appropriate. Contact your local computer specialist for details for information on obtaining and using EEOSTAT. Also, if necessary, RAS will perform the required adverse impact analyses upon request.

If significant adverse impact is found, the respondent or defendant should be asked for evidence which demonstrates that the selection procedure is job related. The evidence provided will typically take the form of a validation report. The report should be examined to see whether it contains a separate "job analysis" section which, in most instances, should be included. After receiving the validation report, it is recommended that the investigator or attorney discuss it with an RAS psychologist. If no significant adverse impact is found, there is usually no need to request a validity report or a validity review.

The technical standards for the review of validation reports are those of the 1978 Uniform Guidelines on Employee Selection Procedures (UGESP), at 29 C.F.R. § 1607, as well as current generally accepted professional testing standards, such as the 1999 Standards for Educational and Psychological Testing and the 1987 Principles for the Validation and Use of Personnel Selection Procedures. The Uniform Guidelines are intended to be consistent with professional standards (UGESP, Section 5C).

Attorneys and investigators are encouraged to contact RAS psychologists informally to discuss selection procedures at issue in their cases. To make a formal request for RAS assistance in conducting adverse impact analyses and validity reviews, follow the procedures in section I.A.2. of Part 4 of the Manual. Memoranda to the Director of RAS requesting services should note any prior discussions with RAS psychologists. Copies of the validation reports and other pertinent documents should be made and forwarded to RAS. Upon receipt of the validation report, the Director of RAS will refer the case to an RAS psychologist. If the psychologist assigned to the case concludes that the validity evidence is incomplete, there may be a need to obtain additional data and information from the employer.

During an EEOC investigation, the RAS psychologist will review the validation report and provide conclusions and recommendations in a memorandum, through the Director of RAS, to the person who requested the review. If the psychologist concludes that the validity evidence does not satisfy the technical standards, additional requests may need to be made of the respondent. If the psychologist concludes that the validity report satisfies the technical standards, and there is no evidence of another selection procedure with equal or greater validity and less adverse impact, the psychologist will conclude that the respondent has satisfied the requirements of the Uniform Guidelines.

If a validity review is requested during litigation, the RAS psychologist will provide consultation and/or expert services, depending upon the needs of the Regional Attorney. In most instances, a Memorandum of Understanding (MOU) between the Regional Attorney and the Director of RAS will need to be drafted and signed. Upon receipt of a litigation-related request, RAS will draft an MOU and submit it to the Regional Attorney for approval. For cases in litigation, the RAS psychologist may provide conclusions and recommendations either in consultation with attorneys or in expert reports and testimony.

The EEOC does not provide prior approval of tests or other selection procedures and does not recommend specific selection procedures. However, a negotiated settlement agreement may require review and approval by an EEOC psychologist.

4. Opposing and Defending Expert Admissibility

Few areas of law affecting OGC litigation have changed as much over the past few years, and continue to evolve as dynamically, as the admissibility of expert testimony. Since 1993, the Supreme Court has issued three major decisions that interpret the Federal Rules of Evidence covering experts (Daubert, Joiner, and Kumho Tire Co). In February 2000, the Court reiterated that attorneys proffering experts must be aware of the exacting standards of reliability such evidence must meet (Weisgram). In December 2000, revised Fed. R. Evid. 702 went into effect, codifying the Court's expert jurisprudence. The revised Rule reflects Congressional concurrence with the importance of the trial judge's role in evaluating proposed expert testimony. As a "gatekeeper," a district judge is responsible for determining whether a purported expert's testimony is based on principles and methods applied reliably to the at-issue facts.

RAS has closely followed the development of federal court decisions on admissibility of expert testimony and is available to consult with legal units on these issues. Thus, RAS can provide pretrial technical assistance regarding defendants who: (1) challenge the admissibility of experts retained by OGC or (2) seek to admit experts who are unqualified to address the questions at issue or whose opinions will not assist the trier of fact. This assistance may include, but is not limited to, identifying the most current circuit and district court precedent interpreting various admissibility issues. The assistance may also include reviewing OGC strategic options regarding defensive and offensive strategies, drafting memoranda, reviewing draft memoranda supporting motions prepared by OGC staff, and reviewing memoranda supporting defendants' motions and replies. If after initial discussions with RAS, a legal unit requires more extensive assistance, the Regional Attorney must submit a written request to the Director of RAS, similar to what is required for other RAS services pursuant to subsection A.2., above.

In sum, OGC suggests that attorneys unfamiliar with this rapidly developing area of law seek technical assistance from RAS. Because each expert admissibility problem is highly case-specific and idiosyncratic, such direct assistance can save valuable time in the litigation process.

5. Web Resources