Employment litigation frequently hinges on the adequacy of an employer’s preventive and corrective measures, particularly as to claims involving harassment, discrimination, or retaliation. Employment (or Workplace) Practices Experts, sometimes also referred to as Human Resources Experts, can play an essential role in helping juries understand complex workplace practices and processes.
Prevention & Remediation: Investigations, Policies & Training
Employees often allege that their employer breached its obligation to prevent and remediate inappropriate workplace conduct. Employers frequently assert affirmative defenses to avoid liability. If an employer can demonstrate it exercised reasonable care to prevent and promptly correct any harassing or discriminatory conduct and that the employee failed to take advantage of preventive or corrective opportunities provided by the employer, it may be able to avoid liability in certain types of matters. If an employer demonstrates willful indifference by failing to prevent and remediate improper conduct, punitive damages can sometimes be warranted.
Effective training and workplace policies are key measures to prevent harassment, discrimination, and retaliation, while an effective investigation is a critical component of corrective action.
Determining whether an organization’s policies, training, and investigation practices are consistent with recognized workplace practices and protocols requires nuanced understanding and expertise.
When to Consider Engaging an Employment Practices Expert
When properly utilized, experts can help juries understand whether the employer’s processes were aligned with generally accepted protocols, industry standards, and the expert’s experience in the field.
Both defense and plaintiff’s employment counsel should evaluate whether expert insight could assist in a matter. Expert opinions and testimony may be particularly useful in:
- Complex or high-stakes matters involving senior leadership or systemic allegations, with significant exposure;
- Matters where the adequacy of the training, policies, and investigation is critical to the pleadings and affirmative defenses;
- Cases involving heightened exposure to punitive damages liability, particularly in jurisdictions where substantial punitive damages awards are common.
Boundaries of Expert Testimony
While experts can offer significant analytical value, their role is to explain workplace mechanics and process standards rather than to offer legal conclusions. Courts carefully distinguish between explaining recognized practices and attempting to opine on the legal outcome.
By keeping an expert’s focus on benchmarking workplace processes against recognized protocols, rather than declaring legal liability, counsel and organizations can help ensure the analysis remains persuasive, grounded, and practical.
Expert Engagement: Consulting vs. Testifying
Counsel should ensure that the expert has the necessary expertise and experience to meet qualification standards in the jurisdiction where the matter is pending.
To maximize the practical benefit of an Employment or Workplace Practices Expert, counsel should consider an initial consulting engagement to ensure that the expert will be able to provide a helpful opinion or testimony before engaging the expert to testify. Consulting experts can also be valuable partners for counsel in developing litigation strategies, particularly deposition strategies concerning individuals involved in implementing policies, training, and investigations.
Takeaways
Employment Practices Experts offer a valuable, objective lens to evaluate workplace training, policies, and investigation practices. They can be helpful to both plaintiffs’ and defense-side employment litigators in either challenging or supporting the adequacy of policies, training, and investigations.