|
|
3220 M Street Telephone: (916) 492-6555 Facsimile: (916) 492-6556 ©2007 The Ison Law Group |
Expert Use of Human
Resources Professionals
in Employment Litigation
The
use of what has become known as the ‘employment practices expert’ in employment
litigation is an increasing trend nationwide. Employment experts, including
human resources professionals and experienced employment law attorneys, can
testify as to the adequacy of personnel policies, harassment or discrimination
investigations, corrective action, information practices, managerial decision
making, or training. The purpose of employment practices expertise in
employment litigation is to provide the jury with insight into the relevant,
usual, customary, reasonable and appropriate practices of similarly situated
employers.
Case
Law Allowing for Testimony from Employment Practices Experts
Evidence
702 allow expert opinion testimony as long as it
"will assist the trier of fact to understand the
evidence or to determine a fact in issue . . . ." The
In a Title VII case arising out of the Ninth Circuit, Butler v. Home Depot, Inc., 984 F.Supp. 1257 (9th Cir. 1997), Home Depot attempted to exclude testimony of four expert witnesses
proffered by the plaintiff. These experts were to testify in the fields of
organizational diversity program design, gender stereotyping, social relations,
social psychology, organizational behavior, statistics, and job interests. Home
Depot argued the testimony was unreliable.
The
court rejected Home Depot’s arguments. The court found that testimony regarding
such issues as (1) whether Home Depot’s diversity initiative lacked essential
features to accomplish its gender diversity goals; (2) whether Home Depot
failed to accomplish its gender diversity goals, (3) the appropriateness of the
diversity management program; (4) the causes, manifestations and consequences
of gender stereotyping and (5) organizational circumstances that would allow
gender stereotyping to exist was reliable and helpful to the jury.
A
judge deciding the issue of whether the testimony of an employment practices
expert is reliable will likely examine whether the expert has been relied upon
by employers in the normal course of their business for his or her expertise.
The breadth and quality of the expert’s professional and occupational
experience will also need to be assessed. The expert will obviously be examined
further for bias.
The
right expert will have conducted many investigations, performed countless hours
of training, and reviewed hundreds of policies. An employment law attorney
provides the added benefit of understanding the law and of having the experience
of advising and counseling multiple employers on their human resource practices
and problems.
Benefits
of Employment Practices Experts
Many
attorneys may already be using some form of employment practices expert in
their current litigation without realizing the full potential of this type of
expert to their case. An employment practices expert can assist with explaining
to a jury:
- why a particular action was taken in the context of the client’s
business;
- the appropriateness of
a client’s human resource practice by comparison to a review of other
practices;
- the appropriateness of
a client’s investigation by comparison to a review of other
investigations;
- the particular
sensitivities pertinent to a certain type of job;
- the decision making
process of an organization and how that process influenced the outcome or
decision at issue in the case;
- whether the employee
was properly qualified for a certain position;
- whether the company
adequately trained its employees;
- whether decisions by
management were reasonable under the particular circumstances;
- the information that
is generally known by other managers and used by them to achieve an
organization’s objectives;
- the legitimacy of a business justification defense.
Use
of an Expert in Harassment Cases
The
defense outlined by the United States Supreme Court in two 1998 decisions (known
as the Burlington/Faragher defense after the Supreme
Court decisions) highlights the usefulness of the employment practices expert.
The United States Supreme Court held in these two cases that an employer can
avoid liability for sexual harassment by a supervisor if, in part, the employer
can establish that it exercised reasonable care in prevention of harassment and
prompt correction of harassment. (The use of this defense under
An
employment practices expert can provide the jurors with knowledge and
information to allow them to frankly assess what are, in fact, reasonable
measures. An employment practices expert can help a juror evaluate whether the
measures taken were timely, proportionate, thorough, accurate, and competent.
For
instance, in a sexual harassment lawsuit, an employment practices expert can
assist the jury by informing them about the necessary and critical elements of:
(1) an effective sexual harassment training and prevention program; (2) a fair
harassment complaint procedure, (3) an effective, objective, and reliable
investigation; (4) a reasonable and proportionate remedy to prevent and/or
correct harassment. The employment practices expert can provide the jury with
the usual standards observed by managers in comparable situations.
Conclusion
With a
rising trend toward use of employment practices experts, and the numerous
benefits of doing so, both plaintiffs and defense counsel should assess whether
these experts can provide a knowledgeable resource to aid in employment
litigation.