Monday, March 19, 2012

Is This Really Expertise?

The use of experts in employment cases is a difficult and touchy subject. Typically, experts are used to testify about things like future earnings potential, financial damages, statistical analyses, and selection results, especially in regard to mass layoff or hiring cases where a class action or pattern and practice of discrimination is alleged.  Expert testimony and opinion are generally accepted as useful in these situations because the experts are engaging in a relatively settled and quantifiable type of  analysis that can be readily reviewed by a jury or appellate court for accuracy.

Occasionally, however, you will see an attempt to put forth expert testimony on such fundamental questions such as whether the person making the decision was actually discriminating, or whether the factors considered by an employer in making a hiring decision were the correct ones. This type of testimony is particularly dangerous because it intrudes into areas where there is virtually no quantifiable analysis taking place, and because the courts will not, in any event, act as a super-personnel agency, reviewing dumb, but non-discriminatory, employment decisions by companies.

That’s why this recent federal case is so troubling. The plaintiff claimed that a school district refused to hire him because of his age. As part of its defense, the school district put forward an “expert” in, of all things, school superintendent selection. The expert was a professor and chair of the Department of Educational Leadership at the University of Kentucky, and had a Ph.D. in educational administration. He had also written extensively on job requirements for school superintendents, their career paths, recruitment, training, and professional development, and the overall scope of the modern school superintendent job. Interestingly enough, the expert had not participated in a single superintendent search as a member of a school board, nor had he been consulted on a school superintendent search at any level.

But his lack of search experience was not the problem, at least here. The problem was that the expert wanted to talk about things that ought to terrify defense lawyers because of the implication with respect to experts that a plaintiff might ultimately try to put in front of a jury. For example, the expert opined that the district conducted its search in a “fair and equitable” manner and that the district board members properly vetted the various factors that go into the making of a successful school superintendent, that the plaintiff did not have enough “modern” experience as a superintendent to qualify under criteria selected by the defendant school board, that the Illinois Association of School Boards properly provided the local school board with a list of candidates that were currently superintendents, and that the selection was based on proper and effective criteria.

Plaintiff quite properly objected to these opinions, but the trial court overruled the objections and indicated that the expert would be allowed to testify about them. The problem, of course, is that the expert’s opinions aren't based on any kind of scientific method, or even a reputable study, but simply his own opinion which just happens to coincide with that of the people who hired him. No surprise there, of course.

Moreover, the opinion that the expert is providing relates to specific things that courts have long said they don’t care about, namely whether the employer is smart in its employment decisions. In any employment discrimination case like this one, the key is not whether the employer is establishing or using a proper standard, but whether it is consistently applying the standards it has identified as being important. Allowing an expert to step in and testify that the employer was using the correct standards is simply irrelevant. It is also extremely dangerous, because a jury hearing somebody testifying under the mantle of  being an expert is likely to lose track of the fact that the employer standards themselves are usually not the issue.  The real issue for the jury is whether the employer was consistently using the standards that it selected, or whether it was making up those standards as an excuse for illegal discrimination,  in this case, ageism.

The danger from this opinion is that tables can be flipped easily and that in a way it would be tremendously damaging to employers. If a plaintiff could put on testimony from a so-called hiring expert or job performance expert saying that the criteria the employer used were not the best, or that it incorrectly judged the value of a particular performance attribute when it decided to fire a plaintiff, the courts would rapidly find themselves adjudicating whether the employer made a good business judgment. The short answer is that most employers will not win that battle in front of a jury when someone's job hangs in the balance.

I’m going to hope this case remains an isolated example, but practitioners in the Seventh Circuit now have authority for this kind of expert opinion in federal court.

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