Are Outside HR Professionals Necessary in Discrimination Cases?

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By Gayle Cinquegrani

The role of human resources professionals in employment discrimination and harassment litigation depends on many factors, but their use is far from universal, recent interviews with employment attorneys indicated. When HR practitioners are used, they can represent either the employer or the worker.

Outten & Golden partner Kathleen Peratis in New York hires HR practitioners “almost routinely” to testify in cases, she told Bloomberg BNA, but “especially if the case is worth it.” “Such experts are expensive,” added Peratis, who represents employees.

Bruce Fredrickson of Webster and Fredrickson in Washington, also a plaintiff’s attorney, had a different view, saying he feels “confident” in representing his client without hiring an independent HR professional.

A West Coast plaintiff’s attorney also doesn’t use HR practitioners. “I’ve not used an HR person for that purpose in the past,” Vincent Calderone, an employment lawyer in Manhattan Beach, Calif., told Bloomberg BNA. “I don’t think it’s common.”

The use of HR professionals in such cases can depend on expense, court rules and the case’s complexity.

And it can be a regional thing, management attorney Mark Phillis, a shareholder at Littler Mendelson in Pittsburgh, told Bloomberg BNA. The practice of using HR pros to testify occurred more frequently in western Pennsylvania five or 10 years ago, and still occurs in some “pockets” of the country, he said.

Besides hiring outsiders, companies may also present their own HR staff to testify about the company’s policies and procedures and about the investigation conducted after an alleged incident was reported.

HR Testimony Can Be Excluded

One of the downsides of hiring HR experts is that their testimony is often excluded, Phillis said. Most people have been employees or employers, so a judge could rule that the situation is “within the realm of a person’s day-to-day experience” and “not something that requires an outside expert to interpret,” he said.

Such testimony “may even usurp, because the jury is the factfinder,” Calderone said.

But Peratis said HR experts can help clarify issues that an ordinary juror may not understand, such as whether a company’s policies and procedures contain “unconscious bias.”

A Guide Through HR Landscape

“The HR expert will talk about what the standards are in the industry, whether the company has its own policies, and whether the company complied with them,” Nancy Bornn, a California-based human resources consultant and workplace investigator, told Bloomberg BNA.

To qualify to testify, HR people must use “reliable principles and methodology,” Phillis said. But “when it comes to HR investigations, there really is no agreed-upon standard about what constitutes a complete, unbiased investigation,” he said. “HR experts are often called upon to give their opinion masquerading as a legal conclusion” as to whether an investigation was sufficient, he noted.

There’s a split in the courts about whether to let independent HR investigators testify, David Cashdan of Cashdan and Kane in Washington told Bloomberg BNA. Therefore, in some jurisdictions, they sit with the lawyers in the courtroom to advise them but don’t actually testify.

Noted Bornn: “Even if you can’t call me as an expert witness, I can still help you to prepare to take the deposition” of the defendant company’s HR official.

In-House HR People Can Be Undercut

When a company uses its own HR staffers to testify in defense of its handling of the alleged incident, it can be relatively easy to weaken their credibility.

Borrn, along with Fredrickson and Cashdan, demonstrated this at a Metropolitan Washington Employment Lawyers Association conference Feb. 10.

In a simulated cross-examination, they asked a pretend HR executive about his desire to keep his job and his loyalty to the company, leaving the inference that he wouldn’t provide testimony that would damage his employer’s case. They also grilled him about his membership in and certifications from HR professional associations.

Bornn and Cashdan also suggested asking whether the alleged harasser was given additional anti-harassment training and whether the complaint of sex harassment was included in the alleged harasser’s performance review.

They also recommended projecting Equal Employment Opportunity Commission guidelines onto a large screen behind the witness so the jury could see them during the cross-examination.

“The visuals are really helpful,” Cashdan said.

To contact the reporter on this story: Gayle Cinquegrani in Washington at gcinquegrani@bna.com

To contact the editors responsible for this story: Tony Harris in Washington at tharris@bna.com

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