Vocational Experts in Employment Law Cases
Gann, Carl, Journal of Legal Economics
Vocational Experts in Employment Law Litigation Employment lawsuits can originate under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) (EEOC 2002). States additionally have antidiscrimination laws that can be a source of employment law litigation. Attorneys retain vocational experts to help determine damages and provide special knowledge testimony regarding the re-employment process of individuals who have lost their jobs. Vocational experts are also asked to provide testimony about the likely outcomes of the re-employment process. Not all employment law cases brought as a complaint involve job loss, as some individuals file complaints and continue employment. However, when an individual is involuntarily terminated or feels forced out of a job, the immediate question of re-employment emerges with all of its facets. Hanisch (1999) finds the job loss reason of being fired is excluded from the literature and has received little attention. Much research regarding layoffs, mass layoffs, and unemployment removed from the process of termination is available. However, drawing conclusions from "mass layoff studies and inferring them to individually terminated workers in employment law litigation is cautioned.
In many of these cases, claims for vocational damages can be significant. Common areas of disputed vocational damages include back pay, front pay, and the comparability of employment beyond the termination. Victims of employment law discrimination are required to mitigate their damages (Dailey v. Societe Generale 1997). Discharged employees must "use reasonable diligence in finding other suitable employment." Such employment need not be comparable to their previous positions (Ford Motor Co. v. EEOC 1982). Although occupational comparability may need to be understood and expressed to the court, it does not absolve the individual from mitigation. Employers and litigation attorneys are seeking ways to address these issues. In most vocational damage cases where the worker has lost employment and did not return to comparable employment, the finder of fact wants to know the answer to some very straightforward questions: What jobs can this person do, if any? What do these jobs pay? What is the likelihood that this person can get one of these jobs? How long will it take? Were the individual's efforts to obtain a job reasonable and diligent?
The vocational expert helps to quantify vocational damages. The employability of an individual is determined through what is called a vocational evaluation. A vocational evaluation determines the occupations a person can perform based upon an analysis of foundational factors that are integrated into a meaningful conclusion about employment potential. This factor integration includes the person's age, education, work experience and training, marketable transferable skills, aptitudes, work personality, physical and mental capacities, and access to the labor market (Boyd and Toppino 1995). The factor integration method of the vocational evaluation can reveal the employability of an individual and determine the vocational damages, if any. Although a vocational evaluation can discover and report many components the final objective of a vocational evaluation is to determine feasible vocational goals based upon vocational aptitudes, interests and behavior (Roessler and Baker 1998, 83). Once potential employment is understood, the vocational expert can then focus on answering some of the questions.
The rehabilitation counselor is a unique choice as a vocational expert in disability discrimination cases. These professionals counsel handicapped individuals and provide rehabilitation services directed at return-to-work and independent living. These vocational professionals are important members of the rehabilitation team as they coordinate assessments and measure the worker's aptitude, achievement levels, and transferable work skills (Berens and Weed 1999, 31). …