An employer’s internal investigation is often the central battleground in employment litigation. Under the Faragher/Ellerth affirmative defense, an employer’s liability may depend on its ability to demonstrate that it exercised reasonable care to prevent and promptly correct harassing or discriminatory conduct. However, simply “going through the motions,” is no longer sufficient to withstand judicial scrutiny.

Modern employment litigators increasingly utilize specialized workplace investigations and human resource experts to attack or defend the adequacy of employers’ internal investigations, policies, training programs, and corrective actions. Although the use of these experts comes with important legal and evidentiary limitations. Under Federal Rule of Evidence (FRE) 702 and the Daubert standard, trial courts serve as gatekeepers, permitting experts to testify regarding accepted professional standards, industry practices, and investigative methodologies, while prohibiting testimony that offers legal conclusions.

Join us for a KSB Law Lunch & Learn where we will explore the strategic, tactical, and evidentiary considerations involved in retaining and utilizing experts on workplace policies, training, and investigations in employment litigation. This session will provide practical guidance for both plaintiff and defense counsel on how to effectively leverage or successfully challenge an investigation expert.

Topics to Be Addressed Include:

• Understanding the strategic role of workplace investigations and HR experts in evaluating and challenging or defending the impartiality, thoroughness, and reasonableness of workplace investigations, employer policies and training programs, corrective actions, and the Faragher/Ellerth affirmative defense.
• Identifying the foundational sources that support expert opinions, including EEOC guidance, SHRM resources, Association of Workplace Investigators (AWI) Guiding Principles, professional standards, and recognized investigation protocols.
• Conducting a critical assessment of a workplace investigation: including whether the investigation was conducted by a qualified and impartial investigator; promptly and thoroughly addressed all relevant allegations; gathered, analyzed, and corroborated evidence; utilized appropriate interview, credibility-assessment, and fact-finding techniques; applied the proper evidentiary standard; adequately documented investigative steps and findings; communicated results appropriately; and implemented effective corrective and anti-retaliation measures.
• Best practices for retaining and managing experts: including conflict checks; defining the scope of engagement; coordinating the review of investigative files; electronic evidence; deposition testimony; and ensuring the expert remains within permissible evidentiary boundaries.
• Navigating admissibility challenges under FRE 702 and Daubert, including how courts evaluate qualifications, reliability, methodology, and relevance, and where courts draw the line between permissible expert testimony and impermissible legal opinions.
• Examining recent case law addressing workplace investigation experts, including common grounds for admission and exclusion, and practical lessons for maximizing the effectiveness of expert testimony.

Understanding the distinction between permissible expert testimony and impermissible legal conclusions, including common opinions courts exclude, such as whether discrimination, harassment, retaliation, or a hostile work environment actually occured.