Industrial/organizational psychologists as expert witnesses in employment discrimination litigation: Descriptions and prescriptions.

Abstract

Industrial/Organizational (I-O) psychologists can make positive contributions to the process of employment discrimination litigation, but may not know much about the judicial process, their roles as expert witness, or attorneys' and judges' perceptions of their testimony. We synthesize information from published analyses, interviews with experienced expert witnesses, and comments and written opinions of federal judges related to expert witness work by I-O psychologists. We present 10 specific recommendations to enhance the effectiveness of expert witness testimony in employment discrimination litigation.Industrial/organizational (I-O) psychologists have made substantial contributions to understanding many behavioral, quantitative, and legal issues surrounding employment discrimination litigation (Landy, 2005a), but the process of employment litigation is complex and potentially unfamiliar to many psychologists. Thornton and Wingate (2005) provide an analysis of some roles I-O psychologists have played as expert witnesses, but it is often not clear how they become involved in this litigation or how their contributions are evaluated and used by attorneys and trial judges. Furthermore, there is little evidenced-based advice to I-O psychologists regarding how to successfully approach the role of an expert witness in employment discrimination cases.

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co-Production of Law and Science

“…All these issues required using I-O psychology as social fact , to help trial judges adjudicate what had, or had not, been done in testing. I-O psychologists provided expert testimony or consulting based upon their own “original scientific research” or their “education and experience,” and they “critique[ed] testimony” offered by the opposing party's experts (Thornton and Wingate 2005, 180). Indeed, because disparate impact lawsuits typically are class actions involving potentially large liability costs, both plaintiffs and defendants often hire experts to help develop and present social facts to the court (Rose 1989; Stryker 2001; Ugelow 2005).…”

“…Because novice trial lawyers or judges may not know what facts about tests should be introduced, sometimes attorneys will ask I-O psychologists to “summarize [for them or the court] findings from past scientific studies” (Thornton and Wingate 2005, 180). This corresponds to Monahan and Walker's (2010) social framework role, that is, it provides a general context to interpret the legal meaning of facts about a specific employer's test.…”

“…With roots in the late nineteenth century, industrial psychology was relevant to employment discrimination law because industrial psychologists were developing concepts, theories, and cumulative research pertaining to individual abilities, skills, and other performance-related worker characteristics, applicant recruitment, screening, socialization and training, and performance evaluation for employees and human resource management. Industrial psychologists also helped develop job and task analysis, aptitude and achievement tests, test validation, performance appraisal, and new data analytic techniques, including meta-analysis (Murphy 2000; Kehoe and Olson 2005; Thornton and Wingate 2005).…”

Evidence of Content Matching Is Evidence of Validity

“…These statements add considerable confusion, nay obfuscation, to the already difficult challenge of providing expert witness testimony in employment discrimination litigation. In the language of courts, expert testimony must be relevant and reliable (Thornton & Wingate, 2005). In this context, relevant means the testimony is directly pertinent to the specific situation being litigated.…”

The Uniform Guidelines Is Not a Scientific Document: Implications for Expert Testimony

“…The acceptable basis for expert testimony is addressed in the Federal Rules of Evidence, and these rules are influenced by Supreme Court decisions regarding the basis for accepting an individual's testimony. Daubert v. Merrell Dow Pharmaceuticals (1993) is the key decision in this arena (Thornton & Wingate, 2005). Daubert laid out a set of factors that may be used by the courts to determine whether an individual's testimony meets the expert standard.…”