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In a recent discrimination lawsuit filed against an employer, the defendant presented the testimony of an expert to refute any punitive damages claims under KolstadThe court’s opinion provides a road map for the use of expert testimony to support the Kolstad defense.

The EEOC filed suit against an international shipping company on behalf of ninety-four African American drivers, for allegedly discriminating against them based on race in violation of Title VII of the Civil Rights Act of 1964, as amended.   In short, the EEOC asserted that the defendant used race to assign less desirable delivery routes to black drivers. The defendant denied that this practice existed.

In response to the EEOC’s claim for punitive damages, the defendant asserted that it was not liable for punitive damages because it made a good-faith effort to implement its antidiscrimination policies, citing Kolstad v. American Dental Association, 527 U.S. 526, 529–30 (1999) (“[I]n the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s good-faith efforts to comply with Title VII.”).  The district court first noted that it would bifurcate the compensatory and punitive damages aspects of the case, should the jury find the defendant liable and assess compensatory damages.

The defendant presented the testimony of an expert to refute any punitive damages claim under Kolstad.  The expert was a management practices and compliance consultant, who had thirty-nine years of experience as an attorney, workplace investigator, and consultant for private and public employers regarding labor relations, employment law, employee rights and responsibilities, and managerial practices. She had authored over twenty publications, including peer-reviewed articles, on employment issues such as preventing, investigating, and correcting workplace discrimination, harassment, and retaliation.

For this case, the expert had reviewed the defendant’s employee handbook, anti-discrimination training materials, declarations by human resource managers, employee complaints, depositions of managers taken in this case, and depositions of roughly a quarter of the claimants. Based upon her evaluation, the expert opined that the defendant had fully complied with its obligations to establish, maintain, and enforce appropriate anti-discrimination policies, procedures, and programs. It also met, and in certain respects even exceeded, the usual and reasonable management practice or appropriate standard of care. The EEOC sought to exclude the testimony under Daubert.

District Judge John Z. Lee initially concluded that the expert had the necessary knowledge, skill, experience, and training to testify about the methods that companies use to try to comply with their obligations under Title VII. Judge Lee also rejected the argument that the expert testimony usurped the role of the jury.  Judge Lee stated that the expert “certainly could not testify that the defendant complied with Title VII during the period in question as this would be a legal conclusion inappropriate for expert testimony and unhelpful to the jury.”  However, the expert’s testimony fall short of this line and therefore was helpful to the jury.  The expert concluded that the defendant’s policies, procedures, and programs met or exceeded the standard anti-discrimination management practices of similarly situated employers. She also explained that the purpose of these industry standards was to provide guidance to employers to help them comply with federal legal requirements. The expert concluded, based on her review of the record, that the defendant’s managers took certain steps that were consistent with, and went above and beyond, typical anti-discrimination practices employed in similar companies.

Judge Lee also rejected the EEOC’s argument that the expert usurped the jury’s role by weighing the credibility of witnesses and giving some witnesses testimony greater weight than others. Judge Lee noted that this is a common practice of expert witnesses.  Her assumptions were better addressed through cross examination.

Finally, the EEOC argued that the expert’s methodology was unreliable. Again, Judge Lee rejected this argument and stated that the better approach was to cross examine the expert should the EEOC believe that her methodology was faulty.

This opinion provides a road map for the use of expert testimony to support the Kolstad defense.