Industrial/Organizational Psychologists as Expert ...

The Psychologist-Manager Journal, 12: 187–203, 2009
Copyright © The Society of Psychologists in Management
ISSN 1088-7156 print / 1550-3461 online
DOI: 10.1080/10887150903103448

Industrial/Organizational PsychologistsH1T05hP58eM80P-Js73y41c56h61ologist-ManagerJournal,Vol.12,No.3,June2009:pp.1–34
as Expert Witnesses in Employment
Discrimination Litigation:
Descriptions and Prescriptions

George C. Thornton III, Tasha L. Eurich, and Rachel JohnsonTI-hOorEnxtopnerItsII,Eurich,andJohnson

Colorado State University

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 employ-
ment litigation is complex and potentially unfamiliar to many psychologists.
Thornton and Wingate (2005) provide an analysis of some roles I-O psycholo-
gists 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.

An earlier version of this paper was presented at the 22nd annual conference of the Society for
Industrial and Organizational Psychology in New York in 2007.

Correspondence should be sent to George C. Thornton III, Colorado State University, Department
of Psychology, Fort Collins, CO 80523. E-mail: [email protected]

188 THORNTON III, EURICH, AND JOHNSON

The purposes of the present article are to: (a) describe various types of
involvement of I-O psychologists as expert witnesses in employment discrimina-
tion litigation; (b) describe ways human resource managers, attorneys, and
federal trial judges serve as gatekeepers of the involvement of I-O psychologists
in such litigation; and (c) offer practical recommendations for I-O psychologists
serving as expert witnesses based on extant writings, interviews with I-O
psychologists experienced in this realm, and written legal opinions and
comments of federal judges.

The contributions of this investigation are at least two-fold. First, by bringing
together information from multiple sources (i.e., published analyses, expert
witnesses, judges), we provide broad coverage of the state of knowledge regarding
expert witness activities of I-O psychologists. Second, we provide specific recom-
mendations for successful expert witness testimony, and thus the information
will be valuable to both seasoned experts and those less experienced in this
practice.

BACKGROUND AND APPROACH

Brodsky (1991, 1999) provides insightful and pithy advice to psychologists serving
as expert witnesses, but the tips are most relevant to clinical and forensic testimony.
While this advice may be helpful to psychologists in many fields, it does not
address special challenges of employment discrimination litigation, and it is not
directed specifically to I-O psychologists. Perspectives of I-O psychologists’
involvement in such litigation can be found in few existing sources. For example,
Lindemann and Grossman (1996) describe the role of I-O psychologists in litiga-
tion related to testing and personnel selection. Harris (2000) described I-O expert
witness involvement in three cases and offered five implications. Some information
about judges’ perspectives on I-O psychologists is available from past surveys
(Wingate & Thornton, 2004) and interviews (Landy, 2005b). In addition, Thornton
and Wingate (2005) described the legal background and rulings related to who can
serve as experts and what they can say in litigation, especially as these govern the
service of I-O psychologists in employment discrimination litigation.

To supplement the information from these sources, we interviewed 15 I-O
psychologists to obtain their insights into the roles of I-O psychologists in
employment discrimination litigation. A few of these individuals had served as
expert witnesses in scores of cases, some had served in just a few, and two had
served in only one case. The litigation in which they served included being a
witness for both plaintiffs and defendants (although each tended to serve for one
or the other side) involved in alleged discrimination on the basis of race/ethnicity,
gender/sex, and age in hiring, promotion, pay, and reduction in force. Our request
was to comment on experiences in federal courts, although the experts probably

I-O EXPERTS 189

related experiences in state courts as well. Finally, we conducted a review of 100
written federal court opinions where judges directly commented on the testimony
of I-O psychologists in employment discrimination litigation. Relevant cases
were identified through a search of Lexis-Nexis, cases cited in other sources, and
cases known to us and referred to us by persons experienced in the field.
Although all relevant cases are listed in the reference section for the interested
reader to pursue, only key and illustrative rulings are cited in the text. The reader
will want to recognize that the cases were decided at district and appellate levels
and thus have differing importance in subsequent litigation.

The current investigation covers two major topic areas related to the work of
I-O psychologists as expert witnesses in employment discrimination litigation:
descriptions and prescriptions. First, we present a brief description of what is
known about I-O psychologists as experts, beginning with the basic phases of an
employment litigation case. We also briefly summarize the gatekeepers of I-O
expert witness testimony. Second, we provide ten practical recommendations
(i.e., prescriptions) for I-O psychologists serving as expert witnesses.

DESCRIPTIONS

In this section we describe the phases of a typical employment discrimination
case and illustrate some of the roles I-O psychologists play. Then, we describe
how groups of people function as gatekeepers to our involvement.

Phases of an Employment Litigation Case

To frame our investigation, we will first describe the applicable employment
litigation phases outlined by Landy (2005c; class certification, discovery,
motions, mediation/settlement, trial, decisions), several of which may involve I-O
psychologists (see Table 1). They may be contracted by the plaintiff, the defendant,
or the court to serve a variety of functions, including consulting, analyzing statis-
tical data, or testifying. In Table 1, we give examples of the questions that I-O
psychologists may be asked to address in their expert analyses and testimony.
Even this small set of examples portrays the wide range of roles the expert might
play and the broad nature of topics that might arise in their work. The I-O
psychologist may be asked to conduct job analyses to understand job competen-
cies, analyze applicant flow to determine adverse impact, compute statistical
analyses of test reliability and validity, compare rates of compensation, or
describe and comment on the state-of-the-art research in hiring/selection, promo-
tion, and layoff practices.

In class action cases, a judge determines whether a group of plaintiffs are
members of a class of similarly situated individuals. The I-O psychologist may

190 THORNTON III, EURICH, AND JOHNSON

TABLE 1
Expert Witness Involvement by I-O Psychologists in Phases

of Employment Litigation

Phasea Example of question I-O psychologist may be asked

Class certification Was an employment practice applied to a group of
Discovery “similarly situated individuals?”
Motions What questions should attorneys ask the opposing side?
Mediation, settlement Will an expert’s testimony be ruled as admissible (e.g.,
will it meet Daubert standards)?
Trial What are the practices and implications of a particular
Decisions settlement agreement?
Should a consent decree be fashioned?
What is the expert’s opinion of a challenged
employment practice?
How should the discriminatory employment practice be
changed to comply with the law and protect equal
rights?

a Adapted from Landy, 2005c.
Note. I-O psychologists are not typically involved in the phases of investigation/con-
ciliation, issue of right to sue letters, or complaints.

address class certification by examining if an employment practice has been
applied to a group of similarly situated individuals. During discovery, each party
releases information to the opposing party. I-O psychologists are often involved
in this phase, for example, by advising an attorney on the information needed to
conduct a relevant analysis or giving an opinion regarding challenged practices.
Or, the psychologist may examine whether a selection procedure resulted in an
adverse impact against a legally protected group.

In the motions phase, one common motion is to exclude the testimony of
the opposing counsel’s expert witness. The I-O psychologist’s testimony may
or may not be ruled as admissible based on guidelines for expert witnesses
(i.e., Daubert standards [Daubert v. Merrell Dow Pharmaceuticals, Inc.];
Thornton & Wingate, 2005). During mediation and settlement discussions,
expert witnesses may be asked to advise the parties and the court on the impli-
cation of a particular settlement agreement and may help fashion acceptable
practices and conditions.

Although only a small percentage of employment cases go to trial (Landy,
2005c), an I-O psychologist may testify before a judge or jury and render
expert opinions about a challenged practice. Some judges describe the expert
testimony of I-O psychologists as helpful in understanding the facts of the case
(Pennsylvania v. Local Union 542), where others describe such testimony as
irrelevant, faulty, or muddy (Williams v. City of New Orleans). In some
instances, where a consent decree is formed, the I-O psychologist may help set

I-O EXPERTS 191

the terms acceptable to either party. Three litigation steps (investigation/conciliation,
right to sue, and complaint) are not discussed here because I-O psychologists are
usually not involved.

Gatekeepers to I-O Involvement

The following section discusses the gatekeepers of the work of I-O psychologists
(i.e., who is responsible for contracting their work or accepting their testimony).
Three important groups of individuals serve as gatekeepers who determine
whether I-O psychologists are involved in employment discrimination litigation.
First, human resource managers may call on an I-O psychologist who was
involved in designing, implementing, or evaluating an employment practice
before any complaints are voiced or charges are filed, and the psychologist may
be called upon to render an opinion when challenges arise. Even though an I-O
psychologist was not involved originally, human resource managers may seek
the services of an I-O psychologist to defend a practice when an employment
practice is challenged and charges are filed.

The second group of gatekeepers is employment attorneys. If the case
proceeds to the discovery phase, labor attorneys for both the plaintiff and defen-
dant may invite an I-O psychologist to be involved. Serving a plaintiff’s attorney,
an I-O psychologist may, for example, seek documentation related to the devel-
opment of an HR practice or employment records to study the adverse impact of
promotional procedures. Serving a defendant’s attorney, an I-O psychologist
may, for example, request records of sales commissions and quality of assigned
clients to determine fairness of compensation.

The third group of gatekeepers to the involvement of I-O psychologists is
composed of judges and jurors (Finkelman, 2005). Judges rule on motions to
admit or exclude testimony both before and during the trial (Thornton &
Wingate, 2005). Subsequently, and as discussed later in this paper, judges give
various levels of credence to testimony presented in bench trials. In cases with
jury trials, a judge’s role is to determine whether expert witnesses’ testimony
meets requirements of relevance and reliability, after which jurors determine if
the testimony of experts is to be given credence.

PRESCRIPTIONS FOR I-O PSYCHOLOGISTS

In this section, we offer ten suggestions about how I-O psychologists can become
involved as expert witnesses, as well as provide prescriptions for success and
how to act at various stages of employment discrimination litigation. These tips
complement Brodsky’s (1991, 1999) advice to psychologists in general about
testifying in court.

192 THORNTON III, EURICH, AND JOHNSON

Pick a Good Horse

A “good horse” is a case where the side you will represent has some ostensible
merit. This does not mean that you must first determine if “your side” will win,
but before becoming involved in employment discrimination litigation, you as an
I-O psychologist should ask a variety of questions to ensure you can make a
meaningful contribution (see Bradley v. City of Lynn; Berkman v. New York;
Kirkland v. New York Department of Correctional Services; EEOC v. Missis-
sippi). You should choose to become involved only if the side you will represent
has some ostensible merit. By the time an I-O psychologist is contacted, the case
has often proceeded far enough to have demonstrated at least some merit. At the
same time, you should not take the case if you cannot see its merit, cannot do
good work, or are not truly an expert in the area. Of course, there is no way of
predicting with any degree of confidence whether your client will win. More
importantly, you should investigate if you can do good work, that is, you can
have access to relevant data, conduct meaningful analyses, and present reliable
and relevant information. In the legal context, reliable means the testimony is
based on credible evidence, and relevant means the testimony helps the trier of
fact (i.e., the judge or jury) make a decision. Gaining access to information may
be more difficult for plaintiff experts than defendant experts. The former will
have to submit requests for production of documents through the attorney to
obtain records held by the defendant organization.

It may not always be possible to obtain the information one needs to make an
informed decision about the merits of the case. The attorneys and the organiza-
tion may not be totally forthcoming in giving you all the information on all facets
of the case. A reviewer of this manuscript offered an example where the I-O
psychologist may be asked to examine test bias and predictive validity, but may
not be told information about disparate treatment.

Use, But Don’t Abuse or Rely on Your Credentials

Credentials (e.g., degrees, honors) and past work experience have made positive
impressions on some courts (San Francisco Police Officers Association v. City
and County of San Francisco; Hamer v. City of Atlanta; Hurst v. Woolworth), but
not others (Watkins v. Scott Paper Company). Although one judge commented,”
I think [credentials] ought to play a less important role than they do at present”
(Landy, 2005b, p. 531), prior cases indicate that, increasingly, judges may not
give weight to I-O psychologists’ testimony based solely on credentials (EEOC v.
Local 638). Thus, credentials may be necessary, but not sufficient for credible,
expert testimony (see EEOC v. Altmeyer’s Home Stores). As an example, another
judge stated that, “Your credentials are less important than your ability to [provide
reliable testimony]” (Landy, 2005b, p. 526). Therefore, judges may be becoming

I-O EXPERTS 193

savvier in terms of weighing credentials less heavily than the substantive contri-
bution of the expert.

Do Good Work

I-O psychologists should do good work, publish, and gain a positive reputation.
This may lead to calls from attorneys to serve as a witness, as well as add to
credibility in the eyes of judges and juries. At the very least, you should know
state-of-the-art practices (Arnold v. Ballard), such as job analysis (EEOC v.
Commonwealth of Pennsylvania; EEOC v. State of Mississippi). This implies
keeping current with the literature. And it behooves you to use multiple methods
for activities such as job and statistical analyses. In addition, you should know
and follow the professional standards for practice, as well as relevant theories of
employment litigation. In cases involving assessment and selection practices, you
must be conversant with professional standards embodied in the Standards for
Educational and Psychological Testing (American Educational Research Associa-
tion, American Psychological Association, and National Council on Measurement
in Education, 1999), the Principles for the Validation and Use of Personnel
Selection Techniques (Society for Industrial and Organizational Psychology,
2003), and the Uniform Guidelines on Employee Selection Procedures (Equal
Employment Opportunity Commission, Civil Rights Commission, Department of
Labor, & Department of Justice, 1974). Finally, you must be familiar with the
U.S. Supreme Court decisions underpinning the two most commonly applied
theories of employment litigation, namely disparate impact (Griggs v. Duke
Power) and disparate treatment (McDonnell Douglas v. Green).

Give Detailed and Relevant Testimony

Judges have commented on the need for experts to provide detailed and relevant
testimony. I-O experts will want to avoid criticism such as the following: “Dr.
[X’s] testimony on all disputed issues of fact was very vague, speculative, and
conjectural. Overall, his testimony was neither knowledgeable nor credible”
(Davis v. Frank). Therefore, the testimony should be specific (EEOC v. State of
New Jersey) and thorough (Houck v. Farmer’s Group; Segar v. Civiletti). The
expert should stick to the facts (Clady v. County of Los Angeles). Testimony
might be excluded if it is irrelevant or speculative (Adams v. Indiana Bell;
Gonzales v. Conoco). Testimony giving allegations of general societal stereo-
types about age (Brink v. Union Carbide) or disability (Kelly v. Drexel University)
has been rejected as irrelevant to the circumstances of a case. More general dis-
missal of such social framework analysis, termed “junk science” by one veteran
defense counsel, can be found in Copus (2005). A recent scholarly exchange on
the relevance of laboratory research to real-world employment decisions and

194 THORNTON III, EURICH, AND JOHNSON

employment discrimination litigation can be found in Volume 1, Issue 4 of Indus-
trial and Organizational Psychology: Perspectives on Science and Practice, with
con arguments by Landy (2008) and Johnson and Cochran (2008) and pro argu-
ments by Heilman & Eagly (2008), Leslie, King, Bradley, and Hebl (2008),
Brogida, Deason, Kim, and Fiske (2008), and others.

Use Statistics, but Use Them Well

For many employment discrimination cases, statistical analyses may be appropriate
(Wingate & Thornton, 2000). Judges are impressed by statistics often more than
opinions alone. In fact, judges may criticize experts where statistics are not provided
(Edmonds v. Southern Pacific). Issues of alleged adverse impact, test validation, pay
discrimination, labor market comparisons, and so on can be addressed with statisti-
cal analyses. While many judges are not trained in research methods, psychometrics,
or statistics, some have become quite knowledgeable about quantitative methods
through experience on the bench, as well as workshops and resources provided in
the legal profession (Meacham v. Knolls Atomic Power Laboratory). Federal judges
have made explicit comments in their rulings on the qualities they look for when
reviewing statistical evidence. In one case a judge ruled that the sample was too
broad (Albright v New Orleans). Experts should apply appropriate statistical tests
(Adams v. Indiana Bell Telephone), know the statistical methods relevant to employ-
ment discrimination (Cook v. Billington), use correct formulas while avoiding com-
putational errors (Police Officers for Equal Rights v. Columbus), and use multiple
statistics without over-interpreting them (Pennsylvania v. Local Union 542).

When using regression analyses, a common error is to under-specify regres-
sion models (Coble v. Hot Spring School; Meacham v. Knolls Atomic Power
Laboratory). For example, in analyses of demographic differences in layoffs, the
level of job performance should be included in the model along with age, race, or
gender. In regression models, we recommend including as many relevant variables
as possible that may explain decision differences across employee groups. Judges
and opposing attorneys can recognize when regression formulae are underspeci-
fied. In other words, it will be clear if variables representing logical explanations
for employment decisions are left out of the regression formulae. On the other
hand, plaintiff experts may point out that defendant experts have over-specified
regression formulae, for example, by including an unnecessarily large number of
seemingly relevant independent variables other than the critical variable of, say,
gender or race.

Know the Law: Statutes, Precedent Cases, and Executive Orders

Employment litigation may be based on four sources of law: (a) the U.S. Consti-
tution, (b) federal statutes, (c) key cases from federal and state courts that serve

I-O EXPERTS 195

as precedents in subsequent courts, and (d) regulations promulgated by executive
agencies. Section 1983 of the U.S. Constitution, providing equal protection, may
be used in claims filed by employees and former employees. Key federal statutes
include Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights
Act of 1991, the Americans with Disabilities Act (ADA), and the Age Discrimi-
nation in Employment Act (ADEA). (For discussions of each of the statutes, see
Bennett-Alexander, 2007; Gutman, 2000; Landy, 2005a.)

The expert must also be familiar with a number of precedent-setting cases
relevant to the issue at hand: for example, Griggs v. Duke Power (adverse
impact), McDonnell v. Douglas (disparate treatment), Meritor Savings Bank v.
Vinson (sexual harassment), Paquin v. Fannie Mae (age discrimination).
Although the I-O expert must not act as a lawyer or try to interpret the law, he or
she must be familiar with judges’ rulings on the substantive issues related to the
human resource practices. I-O psychologists will find it instructive to read a
number of judges’ opinions where I-O psychologists have served as experts.

The fourth form of law relevant to I-O psychologists’ expert testimony is
administrative law (i.e., executive orders and regulations promulgated by
agencies of the federal government). A prime example is Executive Order 11246,
which prohibits discrimination and requires affirmative action plans for organiza-
tions doing work with the federal government (e.g., government contractors,
recipients of federal assistance, etc.). It applies to private organizations that do
business with the federal government, requiring that contractors submit affirma-
tive action plans proving that the organization’s workforce is representative of its
labor market. Other administrative law includes the many agency regulations
which interpret statutes. A definition of terms and processes used by the Equal
Employment Opportunity Commission can be found on its Web site (http://
www.eeoc.gov/policy/docs/qanda-ugesp.html).

Clarify Your Role as an Impartial Party

I-O psychologists serving as experts for either plaintiffs or defendants face the
challenge of maintaining impartiality in the decidedly contentious climate of a
law suit. Legal settings are obviously quite different from academia. Experts may
be pushed to present only information supporting one lawyer’s arguments, which
is a far cry from the impartiality academics advocate. Federal judges have com-
mented on the sometimes conflicting roles experts play (e.g., EEOC v. Zia), and
Table 2 presents an analysis of these situations. The expert’s role is to inform the
court. Siding with your party on all issues can cause the trial to become an
argument, which judges dislike (Myracle v. General Electric), or “a battle of the
experts” (EEOC v. Atlas Paper Box Company), which leaves the judge to
wonder, “Do I look at the cut of his suit? Is their grammar better than the others’?
That’s a really tough choice . . . when you’ve got people with incredibly good

196 THORNTON III, EURICH, AND JOHNSON

TABLE 2
Challenges Faced in Serving as Impartial Advisor

The ideal To avoid Example cases

Your role Informing the court Helping your side Myracle v. General Electric;
Presenting about the right “win” at all costs EEOC v. Atlas Paper
thing to do
information Using only results that Vulcan Pioneers v. New
Providing consistent support “your” case Jersey Department of
Allegiance information, Civil Service;
leading to Appearing to be
“extremely biased toward one Camp v. Lockheed;
enlightening, particular side Wade v. Mississippi
helpful and candid”
testimony Cooperative

Being a disinterested EEOC v. Local 638;
party: remember USA v. Virginia;
APA’s Standards James v. Stockham;
Brunet v. Columbus

credentials who have looked at the same documents and the same facts and
who are up to date in the same science opine in completely different ways”
(Landy, 2005b, p. 542). Always be consistent across different phases of the
litigation, and do not simply choose just the results that support your client’s
case.

The ideal approach for an I-O expert is to remain neutral and present informa-
tion that will help the trier of fact (either the judge or jury) make the correct
decision. You should avoid being biased, trying to “win,” and reporting only
selective results that support “your” side. As an impartial advisor, remain inde-
pendent and avoid being biased or appearing to be biased. Testimony should be
candid, even when it might not be in perfect agreement with the goals of the party
calling for your testimony (EEOC v. Local 638; United States of America v.
Commonwealth of Virginia). Judges often exclude testimony because an expert
appears biased (Brunet v. City of Columbus; James v. Stockham Valves and
Fittings Company).

Speak and Write Clearly

Experts should present testimony clearly, concisely, and should present only
information germane to the subject at hand (Houck v. Farmer’s Group).
Moreover, avoid jargon and arcane language. Judges have complained that some
expert testimony is unintelligible (Landy, 2005b). Meeting this challenge may be
especially difficult for academicians who write and speak mainly to student or
professional audiences; however, leave arcane language for journal articles!

I-O EXPERTS 197

Be Prepared for Challenges

The legal arena fosters strong arguments by plaintiffs and defendants. Attorneys
have a duty to do everything within the law to “win” for their clients. As a result,
I-O psychologists must be prepared for sharp challenges to their testimony
(Thornton & Wingate, 2005; Zamlen v. City of Cleveland). At the very least,
judges may not know about I-O psychology and scientific methods (Wingate &
Thornton, 2004; Kovera & McAuliff, 2000) and may therefore be skeptical of the
reliability and relevance of I-O psychologists’ testimony. Moreover, “dueling
experts” may present conflicting testimony on adverse impact (Lanning v.
SEPTA), test validity (Nash v. Jacksonville), or employee survey data (Stender v.
Lucky Stores). The testimony of I-O experts may also be opposed by experts
from other fields, such as economics, human resources, sociology, or labor eco-
nomics, who have different skills and use different analytical techniques that may
be persuasive to judges. More anxiety producing may be the attempts by oppos-
ing attorneys to strike testimony in pretrial hearings or to discredit a witness in
courtroom proceedings. The I-O psychologist should maintain a professional
demeanor and remember that testimony can still prevail if it is based on good
work (Flavel v. Svedala Industries; Dean v. Boeing; Gonzalez v. Conoco).

Be Prepared for Forces Outside Your Control

Our final recommendation can be considered a realistic job preview for I-O psy-
chologists serving as expert witnesses. Employment litigation is a complex area,
which may mean that your sound, convincing testimony may not be admissible
or carry weight. We will briefly discuss four possible reasons for this occurrence.

First, you may be called in for testimony that helps the court but is not dispos-
itive (Markey v. Tenneco Oil; Williams v. New Orleans). For example, you may
be asked to explain how one validates an employment test in accordance with
state-of-the-art professional practices, but you may not actually deal with the
facts of the case. Second, those involved can make mistakes that may cause your
testimony to be stricken as a matter of law (Flavel v. Svedala Industries; Kinsey v.
Legg). Third, your testimony can be sound, but “your side” may “lose” for other
reasons (Butler v. Portland General Electric). Finally, much like organizations,
courtrooms often have strong political climates that may influence how your tes-
timony is received.

CAVEAT

As any judge or lawyer will tell you that a lawsuit is an individual or situation-
specific decision, and judges’ decisions may often appear idiosyncratic.

198 THORNTON III, EURICH, AND JOHNSON

Although the principle of stare decisis provides judges guidance on how previous
similar cases have been decided, precedent cases may not be followed because of
the unique circumstances of the instant case. Therefore, any advice based on
policy-capturing studies of judges’ rulings may not be useful in subsequent litiga-
tion. Certainly, there are also differences regarding how cases are decided across
judges within a district or across districts. In addition, case law evolves over
time. Furthermore, it is often difficult to determine the basis of a judge’s opinion.
Roehling (1993) has clearly pointed out the limits of trying to capture the policy
of judges’ decisions and has warned of the imprecision of making predictions
about how other judges will decide in subsequent cases. Therefore, we urge you
to use these recommendations as rough guides rather than guiding principles for
serving as an expert.

There are many aspects of the involvement of I-O psychologists in employ-
ment discrimination litigation about which we have little information. We do not
have systematic information about attorneys’ perceptions of the potential roles of
I-O psychologists. We do not have much research on how jurors evaluate and use
information presented by I-O psychologists in jury trials (for an exception, see
Finkelman, 2005). Nor do we know effective ways of educating the groups of
gatekeepers about the contributions we can make. Finally, whereas the prepon-
derance of evidence and advice has dealt with litigation in U.S. federal courts, we
sorely need studies of the processes and outcomes in state courts whose practices
may vary across the country. A complex case in California (Kotla v. Regents)
provides insight into unique challenges an I-O psychologist may face in a state
court (Nielsen, 2005). Even though the appellate court ruled that the trial judge
should not have allowed the I-O psychologist to testify about one issue (i.e.,
retaliation), the I-O psychologist should be allowed to provide expert testimony
on other issues relevant to the case (e.g., proportionate punishments, adherence to
ordinary procedures). The decision clearly indicates I-O psychologists are quali-
fied to provide expert testimony in cases involving human resource management
practices in California. Their status in other states may vary.

CONCLUSION

I-O psychologists can make substantial contributions to the process of employ-
ment discrimination litigation by serving as expert witnesses. Our 10 recommen-
dations can be summarized thus: be technically competent, prepare thoroughly,
communicate clearly, and remain independent. To have the desired effect, expert
witness work must be, in the terminology of the legal establishment, reliable and
relevant. In this context, reliable subsumes psychologists’ notions of psychometric
reliability and validity and internal and external validity of research designs;
relevant means the testimony bears directly on the circumstances in the specific

I-O EXPERTS 199

case. In addition, testimony must be presented in a form that is understandable to
the judge or jury. Throughout the process, the I-O expert should remain impartial,
maintain professional ethical behavior, and resist pressures to become entangled in
the purposely contentious context of judicial proceedings.

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EMPLOYMENT DISCRIMINATION CASES INVOLVING I-O
PSYCHOLOGISTS (*CITED IN THE TEXT)

APPELLATE COURT CASES

American Federation of State, County, & Municipal Employees v. County of Nassau, 96 F. 3d 644 (2d
Cir. 1996).

Barnes v. City of Cincinnati, 401 F. 3d 729 (6th Cir. 2005).
Black Grievance Comm. v. Philadelphia Elec. Co., 802 F. 2d 648 (3d Cir. 1986).
*Brunet v. City of Columbus, 58 F. 3d 251 (6th Cir. 1995).
Capaci v. Katz, 711 F. 2d 647 (5th Cir. 1983).
*Clady v. County of Los Angeles, 770 F. 2d 1421 (9th Cir. 1985).
*Coble v. Hot Springs School District, 682 F. 2d 721 (8th Cir. 1982).
*Equal Employment Opportunity Commission v. Local 638 Sheet Metal Workers, 532 F.2d 821 (2nd

Cir. 1976).
Firefighters Institute Of Racial Equality v. St. Louis, 616 F.2d 350 (8th Cir. 1980).
Green v. Missouri Pacific R.R., 523 F.2d 1290 (8th Cir. 1975).
Guardians Association of New York City Police Department v. Civil Service Commission of New

York, 630 F.2d 79 (2nd Cir., 1980).
*Hamer v. City of Atlanta, 872 F.2d 1521 (1th Cir. 1989).
Hayes v. Gardner, 376 F.2d 517 (4th Cir. 1967).
*Houck v. Farmers Group, No. 39334-1-I, 1998 Wash. App. LEXIS 688 (9th Cir. 1998).
*Kotla v. Regents, 115 Cal. App. 4th 283 (Div. 1, 1st Appellate District 2004).
Lewis v. National Labor Relations Board, 750 F. 2d 1266 (5th Cir. 1985).

I-O EXPERTS 201

Logan Lumber Company v. Commissioner of the Internal Revenue Service, 2F.Supp2d 1077(5th Cir.
1996).

*Meacham v. Knolls Atomic Power Laboratory, 461 F. 3d 134 (2nd Cir. 2006).
*Myracle v. General Electric, No. 92-6716, 1994 U.S. App. LEXIS 23307 (6th Cir. 1994).
Tyler v. Union Oil, 304 F.3d 379 (5th Cir. 2002).
*Williams v. City of New Orleans, 729 F.2d 1554 (5th Cir. 1984).

DISTRICT COURT CASES

*Adams v. Indiana Bell Telephone, 2 F. Supp. 2d 1077 (S.D. Ind. 1998).
*Albright v. New Orleans, 1999 U.S. LEXIS 5634 (S.D. LA 1999).
*Arnold v. Ballard, 390 F. Supp. 723 (N.D. Ohio 1975).
Adams v. Chicago, 1996 U.S. Dist. LEXIS 3567 (N.D. Illinois).
Ashton v. Memphis, 49 F.Supp. 291051 (W.D. Tennesee 1999).
Association of Mexican-American Educators v. California, 937 F. Supp. 1397 (N.D. CA 1996).
Bacon v. Honda, 205 F.R.D. 466 (S.D. Ohio 2001).
Bates v. McDermott, CA Nos. 87-3617, 87-4747, 87-4848, 1988 U.S. Dist. LEXIS 3215 (E.D. La.

1988).
*Berkman v. City of N.Y., 536 F. Supp. 177 (E.D. N.Y. 1982).
Bolls v. Southwestern Thomson Learning, 311 F. Supp. 2d 643 (S.D. Ohio 2003).
*Bradley v. City of Lynn, 443 F. Supp. 2d 145 (Mass. 2006).
Bridgeport Guardians, Inc., v. City of Bridgeport, 735 F. Supp. 1126 (Conn. 1990).
*Brink v. Union Carbide, 41 F.Supp. 2d406 (S.D. New York 1999).
Brown v. Chicago, 8 F. Supp. 2d1095 (N.D. Illinois).
*Butler v. Portland Gen. Elec. Co., 748 F. Supp. 783 (Or. 1990).
*Camp v. Lockheed Martin, CA No. H-97-1938, 1998 U.S. Dist. LEXIS 20750 (S.D. Tex. 1998).
*Cook v. Billington, CA No. 82-0400, 1992 U.S. Dist. LEXIS 12519 (D.C. 1992).
Cormier v. P.P.G. Industries, 519 F. Supp. 211 (W.D. La. 1981).
Davis v. Alabama Department of Education, 768 F. Supp.1471 (N.D. Alabama 1991).
Davis v. AT&T Information Systems, CA No. 87-2013, 1989 U.S. Dist. LEXIS 17517 (W.D. La.

1989).
*Davis v. Frank, 711 F. Supp. 447 (N.D. Ill. 1989).
*Dean v. Boeing, No. 02-1019, 2003 U.S. Dist. LEXIS 8787 (Kansas, 2003).
Diaz v. Pan Am. World Airways, 311 F. Supp. 559 (S.D. Fla. 1970).
Dicker v. Allstate Life Ins., No. 89 C 4982, 1997 U.S. Dist. LEXIS 4512 (N.D. Ill. Apr. 7, 1997).
Dipompo v. West Point Military Academy, 770 F. Supp. 887 (S.D. New York 1991).
Easley v. Anheuser-Busch, 572 F. Supp. 402 (E.D. Mo. 1983).
*Edmonds v. Southern Pacific Transportation, 1979 U.S. Dist. LEXIS 13100 (N.D. CA 1979).
*Equal Employment Opportunity Commission v. Altmeyer’s Home Stores, 672 F. Supp. 201 (W.D.

Pa., 1987).
*Equal Employment Opportunity Commission v. Atlas Paper Box Company, 680 F. Supp. 1184 (E.D.

Tenn., 1987).
*Equal Employment Opportunity Commission v. State of Mississippi, 654 F. Supp. 1168 (S.D. Miss.

1987).
Equal Employment Opportunity Commission v. Mississippi State Tax Commission, 693 Supp. 516

(S.D. Miss. 1987).
*Equal Employment Opportunity Commission v. State of New Jersey, 631 F. Supp. 1506 (N.J.

1986).

202 THORNTON III, EURICH, AND JOHNSON

Equal Employment Opportunity Commission v. Commonwealth of Pennsylvania, 645 Supp. 1545
(M.D. Pa. 1986).

Equal Employment Opportunity Commission .v Simpson Timber, 1992 U.S. Dist. Lexis 5829 (W.D.
Washington, 1992).

Equal Employment Opportunity Commission v. Zia, Nos. 74-173, 74-174, 1976 U.S. Dist. LEXIS
14851 (N.M. 1976).

Evans v. Gardner, 263 F. Supp. 559 (W.D. Ark., 1967).
*Flavel v. Svedala, No. 92-C-1095, 1994 U.S. Dist. LEXIS 19774 (E.D. Wis. 1994).
*Gonzales v. Conoco, CA No. H-98-3109, 1999 U.S. Dist. LEXIS 19936 (S.D. Tex. 1999).
Graffam v. Scott Paper, 870 F. Supp. 389 (Maine 1994).
*Hurst v. Woolworth, 95 Civ. 6584, 1997 U.S. Dist. LEXIS 17233 (S.D. N.Y. 1997).
*James v. Stockham Valves and Fittings, 394 F. Supp. 434 (N.D. Ala. 1975).
Johnson v. Garrett, 1991 U.S. Dist. LEXIS 8185 (M.D. Florida 1991).
Johnson v Reno, CA 93-02060, 1993 U.S. Dist LEXIS 2164 (DC 1993).
*Kelly v. Drexel University, 907 F. Supp. 864 (E.D. PA 1995).
*Kinsey v. Legg, No. 1338-71, 1974 U.S. Dist. 5839 (D.C. 1974).
*Kirkland v. New York. Department of Correctional Services, 374 F. Supp. 1361 (S.D. N.Y 1974).
*Lanning v. Southeastern Pennsylvania Transportation Authority, 1998 U.S. Dist. LEXIS 9388 (E.D.

Pa. 1998).
Latson v. GC Services, 2000 U.S. Dist. LEXIS 6295 (S.D. Texas 2000).
Lenihan v. Boeing, 994 F. Supp 776 (S.D. Texas 1998).
Lewis v. Chicago, No. 98 C 5596, 2005 U.S. Dist. LEXIS 42544 (N.D. Ill. 2005).
Manns v. Fieldcrest Cannon, Case No. 4: 96CV0057, 1999 U.S. Dist. LEXIS 21872 (W.D. Virginia

1999).
*Markey v. Tenneco Oil, 439 F. Supp. 219 (E.D. La. 1977).
McManus v. Delaware & Hudson Railway, CA No. 86-1309, 1987 U.S. Dist. LEXIS 8277 (M.D. Pa.

1987).
McNamara v. Chicago, 1997 U.S. Dist. LEXIS 2477 (N.D. Illinois 1997).
McReynolds v. Sodexho Marriott Services, 349 F. Supp. 2d 1 (D.C. 2004).
*Nash v. Jacksonville, 895 F. Supp. 1536 (M.D. Florida 1995).
*Pennsylvania v. Local Union 542 International Union of Operating Engineers, 469 F. Supp. 329

(E.D. Pa. 1978).
Pennsylvania v. International Union of Operating Engineers, 90 F.R.D. 589 (E.D. Pa. 1981)
*Police Officers for Equal Rights v. Columbus, 644 F. Supp. 393 (S.D. Ohio 1985).
Puhy v. Delta Air Lines, 833 F. Supp. 1577 (N.D. Georgia 1993).
Reynolds v. Alabama Department of Transportation, 295 F. Supp. 2d 1298 (M.D. Ala. 2003).
Reynolds v. Sheet Metal Workers Local 102, 498 F. Supp. 952 (D.C. 1980).
Roniger v. McCall, 2000 U.S. Dist. LEXIS 11999 (2000).
Rudder v. District of Columbia, 890 F.Supp.23 (D.C. 1995).
*San Francisco Police Officers Association v. City & County of San Francisco, 621 F. Supp. 1225

(N.D. Cal. 1985).
*Segar v. Civiletti, 508 F. Supp. 690 (D.C. 1981).
Sims v. Montgomery County Commission, 934 F. Supp. 1314 (M.D. Alabama).
Smith v. Cleveland, 363 F. Supp. 1131 (N.D. Ohio 1973).
Sperling v. Hoffman-La Roche, 924 F. Supp. 1346 (N.J. 1996).
*Stender v. Lucky Stores, 803 F. Supp. (N.D. California 1992).
Stephens v. Gardner, 257 F. Supp. 582 (E.D. Tenn. 1966).
Stewart v. Campbell Soup, 1981 U.S. Dist. LEXIS 17023 (N.D. Ohio 1981).
Taylor v. James River, CA No. 88-0818-T-C, 1989 U.S. Dist. LEXIS 16101 (S.D. Ala. 1989).
Tye v. City of Cincinnati, 794 F. Supp. 824 (S.D. Ohio 1992).