Expert Witnesses in Sexual Harassment Claims

Backgrounds of Employment Expert Witnesses

Today’s employment expert witnesses may come from a variety of backgrounds which can aid parties involved in employment litigation. This includes psychologists, sociologists and mental health professionals. These individuals may testify about the effects of sexual harassment or sexual discrimination in the workplace and how this has affected the psyche of the plaintiff. Economic expert witnesses can explain the economic impact of the sexual harassment or sexual discrimination. They may consider how much earning potential the plaintiff had before the precipitating events and compare this to the effect after the discriminatory action or sexual harassment. Human resources experts may explain the various rules that may apply to sexual harassment cases and opine as to how an employer did or did not violate these rules, regulations or laws.

Uses of Expert Witnesses

Expert witnesses can have a significant impact on employment litigation. Social psychologists may be able to provide testimony
about how a business is organized and how its structure may have contributed to a sexist culture or discriminatory regime. They may also be able to provide testimony regarding the deficiency in employment policies and practices. Personnel policies and promotion decisions may be affected by gender bias.

Another possible use of an expert witness is to establish commonality so that the case can proceed as a class action lawsuit against the employer. Expert witnesses may be called as human resources experts. For example, some cases may lodge a defense based on the concept that they had an existing sexual harassment policy, that they exercised reasonable care to prevent harassment, acted promptly to correct any harassment and that the employee did not avail himself or herself of the policy so that the employer could properly respond to these allegations. The employer may hire an expert witness to establish that the employee unreasonably failed to take advantage of the corrective opportunities that it offered while an employee may wish to show that the employee did take advantage of this policy or that it would not have done any good to avail himself or herself of such a policy. Human resource experts can explain whether the company’s anti-harassment policy was adequate to respond to complaints of sexual harassment.

Federal Rules of Evidence

While many employment cases are litigated on the state level, it is useful to turn to the federal rules of evidence for guidance. A prevailing test for the admission of expert witness testimony is the application of the Daubert factors. When testimony is scientific or technical in nature or relies on specialized knowledge that assists the jurors to understand the evidence or a fact at issue, an expert witness may be qualified based on his or her knowledge, skill, education, training or experience. However, there are three criterion that must be met. First, the expert’s testimony must be based upon sufficient facts or data. Second, the testimony is based on reliable principles and methods that are accepted in the industry. Last, the expert witness must properly apply the principles and methods to the facts of the case in a reliable fashion. This standard applies to the admissibility of expert evidence in federal employment cases.

Daubert Challenges

If the opposing party is using an expert witness, the party may make a Daubert challenge regarding the admissibility of this type of testimony. These challenges may allege that the expert witness is not using a reliable methodology to reach a particular conclusion. They may also challenge the evidence that the expert witness chooses to credit or discredit. Different jurisdictions have different standards regarding the reliability of certain methodologies. For example, some jurisdictions do allow an expert witness to complete a social framework analysis to address issues regarding sex discrimination and stereotyping. The expert witness may use a framework and discuss what types of settings usually result in sexual discrimination and whether a particular case coincides with observed patterns. When the analysis is based on accepted practices, it may be more likely to successfully evade a Daubert challenge.

Contact an expert witness for help with your employment claim.

Provided by HG.org

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.