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An Insider’s Guide to Employment Practice Experts

Ginger McRaeEmployers and employees can find themselves on opposing sides in lawsuits. Litigants in employment cases may gain a strategic advantage through the use of an employment practices expert to provide an opinion on employment policies and practices that are relevant to their claims. The party bringing the case may benefit from an expert who can describe the generally accepted human resource practices in, for example, hiring, training, supervision, the response to complaints, and discipline. Employers, by the same token, may aid their defense by use of an expert on employment practices who can speak to the employer’s actions and whether they are consistent with accepted practices in the relevant area. Juries can benefit from the expertise of a human resources practitioner’s explanation of generally accepted practices in the workplace.

Once a novelty, many courts have now recognized the admissibility of testimony from employment practices experts. Experts themselves must be qualified based on knowledge, skill, experience, training or education. At the same time, the offered opinion must be based on sufficient facts or data, stem from reliable principles and methods, and reflect a reliable application of those principles and methods to the facts of the case. 

A look at cases involving the use of employment practices experts demonstrates the types of professional qualifications and circumstances in which expert testimony may be beneficial.

Selecting an Employment Practices Expert
To satisfy the legal requirements for expert designation, an expert must have extensive experience in the human resources field. For example, in Gianfrancisco v. Excelsior Youth Center, Inc.,1 the court stated that the human resources expertise is the beginning point of the court’s evaluation of the expert. While there is no specific amount of experience necessary, the Court found that an expert with more than 14 years of experience, including serving as human resources director for an advertising agency and special project administrator for a museum, was sufficiently qualified to provide expert opinion with regard to the specifics of that case.

Jurors likely respond to an employment practices expert who can both clearly articulate their expertise and has actual experience in the practice area. While academic experience is useful, jurors can be further assisted by expert witnesses who have been directly involved in the specific workplace issues that are the focus of the litigation. Experts who can describe not only how an employer should respond to a workplace complaint, for example, but testify as to how they themselves have responded to such workplace complaints, are valuable components of a litigation strategy.

Beyond real life experience, the expert should have excellent communication skills. Critical to success at trial is the ability to communicate the key concepts to the jury and to break those concepts down into components that can be grasped by jurors who may be unfamiliar with the details of the employment practices at issue. A human resources practitioner with significant, recent experience in the particular area and the ability to communicate the accepted practices in that area may be more helpful than a full-time expert whose direct experience is largely in the past or nonexistent.

Further, actual experience as an HR professional in the relevant area may be more important than past experience as an expert witness. Seasoned HR professionals are accustomed to making presentations and such  experience should transfer well to the courtroom.

When To Consider An Employment Practices Expert

After a court determines that an expert is qualified, it will examine the opinions that the expert seeks to give for reliability. In Gianfrancisco, the court explained that to survive efforts by the opposing side to exclude expert testimony, the testimony the expert expects to give must, in the court’s judgment, be based on sufficient facts or data, be the result of reliable methods and principles, and demonstrate a reliable application of those methods and principles to the facts of the case. The court determined that the employment practices expert in this case involving claims of discrimination based on gender and national origin could testify about generally accepted human resources practices, measures taken by employers to prevent discrimination, and whether the employer adhered to or deviated from generally accepted practices. The court did not automatically rule out expert testimony on the ultimate questions in a case – whether or not the employer discriminated against the plaintiff, but found that the expert could not testify about the result the jury should reach without providing the jury with an explanation of the criteria on which the opinion is based or otherwise provide a basis by which the jury can exercise its own judgment.  

Most courts, however, exclude expert testimony that addresses whether there was discrimination, harassment, or retaliation, finding the expert cannot opine on these ultimate issues. Nevertheless, there are many areas of employment practices litigation in which an expert can provide valuable insight and strategic advantage at trial. 

Equal Pay 
Equal pay for women in the workplace is a current fertile area for litigation and for expert witness testimony. In Gianfrancisco, the court determined that the expert for the employee suing the employer could testify about deficiencies in the employer’s compensation structure and the need for the structure to prevent discrimination between a male and a female doing the same or a similar job. The court found that these opinions pertained to the expert’s specialized knowledge in generally accepted human resource practice and would assist the jury. However, the court held that the expert could not state an opinion that the employer’s failure to act consistently with generally accepted practices indicated discrimination, reasoning that this was unlikely to assist the jury and ran the risk that the jury may unduly defer to the expert’s expertise without making an independent evaluation. 

Reasonable Accommodation and the Interactive Process
Accommodating disabilities in the workplace is another area where employment claims can occur and juries may benefit from an explanation of practices to engage in the interactive process about accommodations. In Maharaj v. California Bank & Trust2,  the Court reviewed numerous decisions permitting testimony by human resources experts and found that expert testimony on whether the employer acted consistently with the standard of care on reasonable accommodations and the interactive process may assist the jury in deciding the employer's liability for discrimination. In that case, the employee sought to exclude the expert’s testimony, arguing that it was not relevant, would not assist the jury, was not reliable, and was based on improper legal conclusions. The court, however, allowed the expert to testify regarding the employer’s actions to accommodate the employee’s disability and its participation in the interactive process. 

Practices to Prevent Retaliation
The surge in retaliation claims has led to a corresponding surge in employment litigation in this area, creating an opportunity for employment practices experts to evaluate employers’ practices in preventing and addressing retaliation claims. In Sitter v. Ascent Healthcare Solutions3,  the employer sought to exclude the expert testimony of a professor who had written extensively about sex discrimination and workplace equality. The court allowed the expert, holding that the professor had sufficient experience and experience to opine on HR practices. The court cited numerous cases allowing HR experts to testify and distinguished cases in which expert testimony was excluded because it addressed the ultimate issue for the jury or was conclusory and lacked an identifiable basis in research or experience. The court stated that while the expert could not testify that the employer failed to provide protection against retaliation because this would encroach upon the role of the jury, the expert could testify about “best or good practices and insufficiencies.”  

Responding to Complaints and Conducting Investigations
Employment practices experts are often utilized in cases involving the employer’s response to a complaint under its anti-discrimination, anti-harassment, anti-retaliation, or a related policy. Expert testimony might address the policy itself, distribution of the policy, and response to a complaint under the policy, including investigation and corrective action. In Mendoza v. Western Medical Center of Santa Ana4,  the California Court of Appeal affirmed the judgment of the trial court in favor of the employee, noting that the employee’s expert testified to multiple shortcomings in the investigation conducted by the employer after the employee’s complaint. 

In EEOC v. GLC Restaurants5,  the court found that an expert witness’ offered opinions on the employer’s policy on harassment, its response to complaints, and investigation process would not “in effect, provide legal instructions to the jury.”  The court found that the expert’s report contained a “detailed examination of the facts in this case as applied to guidance [on anti-harassment] provided by the EEOC.”  The court stated that where the reasonableness of the employer’s conduct was a fact at issue, the expert’s opinion on the reasonableness of the employer’s conduct would assist the jury in understanding the evidence. 

Courts have established a solid basis for the expert testimony of employment practices experts in employment cases where the expert can assist the jury in understanding generally accepted human resource practices and the actions of the parties in the context of those practices. Expert testimony that steers clear of opinions not solidly grounded in facts and the ultimate question to be decided in the case can be a significant advantage at trial – for defense and plaintiffs’ counsel alike.

1 Civil Action No. 10-cv-00991 (D. Colo. 2012).

2 288 F.R.D. 458 (E.D. Cal. 2013).

3 2011 WL 2682976, 2011 U.S. Dist. LEXIS 73849 (N.D. Cal. 2011).

4 166 Cal. Rptr. 3d 720 (2014).

5 No. CV05-618 PCT-DGC (D. Ariz. Jan. 4, 2007)