Expert Witness in Employment Discrimination Cases

Hilary R. Weiner, PhD
Equal Employment Opportunity Commission

While my career has had many interesting twists and turns, I consider my present job as an expert witness with the Equal Employment Opportunity Commission (EEOC) to be my most rewarding. It offers me an opportunity to use virtually all of the skills I have developed during my education and later experience in helping investigators and attorneys determine whether or not employment discrimination has taken place. I also get to persuade others of my opinions, which are based on analyses specifically related to the cases, as well as the published research in my field.

Currently, I work as an in-house testifying expert for EEOC. My involvement in a case usually begins with a telephone call from an attorney in one of our district offices, which are located in major cities across the United States. In most instances, the office has received multiple complaints about a particular employer, and the attorney wants to know whether there is statistical support for filing a class action discrimination lawsuit in court. In other instances, a test or other employment selection procedure has been found to have adverse impact against a group protected by Title VII of the Civil Rights Act, and the attorney wants me to review validation studies for adherence to current professional standards, as required by the Uniform Guidelines on Employee Selection Procedures. In either case, I provide guidance to the office in obtaining and analyzing the information they need to determine whether discrimination has taken place. If a lawsuit is filed against an employer, I am often called to testify at the deposition and trial concerning the results of my analyses and related expert opinions.

When a lawsuit is filed in a class action discrimination case, it usually goes through a fairly long "discovery" phase before going to trial. The purpose of discovery is for both sides to find out as much as they can about the actions of the other side and to develop evidence that they will use at trial. During the discovery phase, I typically help EEOC trial attorneys obtain computerized data needed to perform statistical analyses and company documents which may contain information about hiring, promotion, salary, demotion and/or layoff decisions (depending on the basis of the case). I also provide questions to be used during depositions of key company officials and sometimes attend those depositions.

On the basis of the information obtained during discovery, I perform appropriate statistical analyses and write a report concerning those analyses and my resulting opinions. More often than not, the defendant company also has one or more experts who perform the same tasks for the other side and who are deposed by EEOC or other plaintiffs’ attorneys.

The defendant’s attorneys have the opportunity to depose or question me under oath concerning the content of my report and my qualifications to provide expert opinions on the matters contained in my report. Since the goal of the opposing attorney is to discredit the expert, depositions are probably the most difficult aspect of my job. Some of the more aggressive attorneys will attempt to rattle an expert by making accusations concerning lack of professionalism and incompetence. However, as long as the expert understands the game-playing aspect of the deposition, doesn’t take the accusations personally and sticks to the analysis and report, it is an unpleasant situation that can be survived.

Most of the cases I have been involved in have settled before trial. Often, the monetary amount of settlement and other remedial actions are based on information provided by the experts for the plaintiff and defendant in their reports and at deposition. When a case does go to trial, it is either heard in front of a judge or a jury. The expert is questioned by his or her own attorney (direct examination), then cross-examined by the opposing attorney. Direct examination is very predictable because you can only testify concerning matters in your expert reports, and you have likely worked with the attorney in formulating the kinds of questions to ask. Cross-examination is similar to deposition, but, by this time, you have already been through the war and can anticipate what will be asked.

Obviously, serving as an expert witness in class action employment discrimination cases is not an entry-level job for a PhD psychologist. It is necessary to have several years of experience performing applied research and/or working as an industrial/organizational (I/O) psychologist with experience in personnel selection. Before coming to EEOC, I worked as a survey statistician and as a personnel psychologist for the federal government. Other psychologists have become testifying experts after working as I/O psychologists in the private sector or in academia.

A career as a testifying expert in employment discrimination cases is a path that I would recommend to psychologists with strong analytical skills and a desire for challenging work. The amount of variety in the work is almost unparalleled. In addition to everything else, I have the knowledge that what I do is serving a valuable societal purpose, a great bonus in any career choice.

Author’s Note: The views in this article are my own and do not in any way represent the views of the Equal Employment Opportunity Commission.

(Originally published in the September/October 2001 issue of Psychological Science Agenda, the newsletter of the APA Science Directorate.)