Defense labor economist
Expert class library · Employment · Defense side
Rebuts statistical claims of discrimination by testing model specification, aggregation, and omitted variables. Shows whether disparities disappear once legitimate factors are controlled.
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Questions this testimony turns on
- Does the plaintiffs' regression pool employees across business units, job functions, or decision makers whose pay is set differently?
- Which legitimate factors that drive pay or promotion are missing from the plaintiffs' model, and how does adding them change the disparity?
- Is the availability benchmark used for hiring comparisons drawn from the right labor market and occupation data?
- Were applicants in the protected and comparison groups similarly situated, for example in how long they had been out of work?
- Can a matched comparison or text analysis of employer records be done with a replicable, tested method?
Methods
- Disaggregated analysis by decision unit
- Omitted variable testing
- Model specification critique
- Alternative benchmark analysis
How the testimony is attacked
- Anecdotal matched pairs dressed as statistics. Plaintiffs attack illustrative comparisons of a few hand-picked employees. In Chen-Oster v. Goldman, Sachs the court excluded the defense economist's matched pairs analyses because they had no significance testing, pairs were chosen by counsel, and the explanations came from interviewed managers rather than statistical expertise.
- Untested text-search method. Plaintiffs challenge novel methods with no peer review or error rate. In Moussouris v. Microsoft the court excluded the defense economist's search of promotion justifications for self-selected "business reason" terms, a method he had never used before and did not validate.
- Unreliable alternative benchmark data. Plaintiffs argue the defense economist's census microdata benchmark is flawed. In EEOC v. Texas Roadhouse the court declined to strike the defense expert's use of public use microdata, leaving the dispute to cross-examination.
- Speculative similarly situated critique. Plaintiffs attack defense opinions that applicant groups differ in unmeasured ways, such as duration of unemployment. The Texas Roadhouse court admitted the defense economist's duration dependence analysis, holding that the jury could weigh it.
- Disputes over omitted variables. Each side attacks the other's choice of controls; defense economists argue the plaintiffs omit legitimate pay factors, while plaintiffs argue variables like job level are themselves tainted by bias. Courts generally treat these disputes as matters of weight, as in Moussouris, where the plaintiffs' exclusion of potentially tainted variables was upheld.
What the public record shows
Courts have filed at least 3 opinions since 2015 that discuss this class of testimony and cite Daubert or Rule 702, as of October 2, 2026. Three that show how courts handle this class of testimony:
| Outcome | Case | Court | Year | Why |
|---|---|---|---|---|
| Limited | Chen-Oster v. Goldman, Sachs & Co.114 F. Supp. 3d 110 | S.D.N.Y. | 2015 | Ruling at class certification, the court excluded the employer's statistical expert's matched pairs analyses as statistically unsupported and prone to selection and reporting bias, while his regressions, the bulk of his report, were not challenged. |
| Limited | Moussouris v. Microsoft Corp.311 F. Supp. 3d 1223 | W.D. Wash. | 2018 | The court excluded the employer's economist's word-search analysis of promotion justifications because he picked the business-reason terms himself with no tested method, error rate, or input from the company. |
| Admitted | Equal Employment Opportunity Commission v. Texas Roadhouse, Inc.215 F. Supp. 3d 140 | D. Mass. | 2016 | In an age discrimination hiring case, the court denied the EEOC's motion to strike the employer's economist's census microdata benchmark and duration dependence critique, leaving the disputes for cross-examination. |
Each case links to the free opinion text on CourtListener.
In federal court: amended Rule 702
In federal court, since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.
Related classes
- Disparate-impact labor statistician
- Industrial-organizational psychologist
- Wage-and-hour damages expert
Guides
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Updated October 2, 2026. How this page is built: rulings are found by searching court opinions on CourtListener. The summaries are written by AI working from the full text of each opinion, and every citation and link is checked automatically. Outcomes are labelled by what the court did with the expert’s testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling. Spotted an error? Tell us.