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Beware new court trend: Employees use expert to shift blame for failure

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in Discrimination and Harassment,Human Resources

If an employee drags you into court, don't be surprised if the worker totes along his own expert witness to put your company in a bad light. More employees are using expert witnesses to shift blame for their failure to reach a performance-related goal, and they're winning.

Latest example: Dorman Hartley, a 64-year-old store manager, was fired after failing to meet annual sales goals for his mall location. He was replaced by a man half his age. Meanwhile, two other managers had similar poor store sales numbers but were not fired. Hartley sued, citing age discrimination.

At trial, Hartley brought in an expert witness, a longtime retail economist, who testified that mall retailers nationwide were losing market share to discount stores. Translation: It's the market's fault that sales are down, not Hartley's.

That explanation was apparently enough to persuade a district court that age bias, not his failure to meet the sales quota, was the real motive for Hartley's termination. He was awarded $550,000 in back and front pay. On appeal, the company tried but failed to have the expert testimony tossed out. (Hartley v. Dillard's Inc., No. 02-1298, 8th Cir., 2002)

Advice: Uncontested expert testimony is tough to beat, and courts are reluctant to second-guess it. In fact, courts allow a jury to consider any expert opinion, as long as it's not based on "junk science."

If you know that you'll face an expert in court, you may want to obtain your own. Still, this just sets the stage for a "battle of the experts," where the case may hinge on a jury's believing one expert over another.

The best advice: Avoid the courtroom in the first place. When disciplining workers who fail to meet sales quotas, make sure you're consistent. This worker would not have been teed off if the other two managers had been treated the same way.

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