The Impact of a Vocational Expert in an Employment Case

Vocational experts help lawyers prove damages and defend against damages claim in cases involving wrongful employment terminations. Vocational experts typically work alongside expert economists to build or challenge a case for loss of future earnings . A recent case from a federal court in Texas illustrates the risk that a defendant takes by not retaining a vocational expert to rebut the opinions offered by a plaintiff’s expert.

Apart from proving the merits of a wrongful discharge claim, an employment discrimination victim must prove damages. An unlawful termination of employment is damaging to the extent that it deprives the employee of income that the employee would otherwise have earned.

Discharged employees who seek lost wages as a consequence of employment discrimination generally have a duty to mitigate their damages. They meet that duty by making a diligent effort to find a replacement job. Plaintiffs’ lawyers generally instruct clients to apply for similar positions for which they are qualified and to make a record of employment applications so they can prove they made a diligent effort to find new employment.

Employers often defend against damages in discrimination cases by offering evidence that the discharged employee failed to mitigate damages. Employees who lose their jobs because of unlawful conduct are not required to take new jobs for which they are clearly overqualified — a fired Vice President of Marketing doesn’t need to apply for jobs stocking shelves in a supermarket — but if they fail to search for or accept available comparable employment, their lost earnings will be reduced by wages they could have earned.

The Supreme Court defined comparable employment as a job that is “substantially equivalent” to the job that the discrimination victim was denied. In other words, a plaintiff whose employment was terminated is not required to “go into another line of work, accept a demotion, or take a demeaning position.” In short, fired workers are not required to start at the bottom after they succeed in climbing a career ladder.

Rather, courts generally require employees to search for and accept available employment in the same field that has about the same status. Managers do not need to take an entry level position in the same field. Nor are they required to look for managerial work in a different field or in a different geographic area.

Substantially equivalent employment is easier to find when a worker has few skills or works in an industry (such as nursing) that faces a shortage of skilled workers. It is more difficult to mitigate damages when few positions are available with the same job duties that the employee was performing when his or her employment was terminated.

The burden of proving a failure to mitigate is on the employer. An employer must therefore establish that a diligent search for employment would have enabled the discharged employee to find comparable employment. Defendants often retain vocational experts to survey the labor market in a particular area to determine whether comparable employment existed that the plaintiff failed to pursue.

Plaintiffs rely on vocational experts to establish a loss of future pay. Back pay is the loss of wages from the date of the employment termination to the date of trial. That amount can usually be calculated without expert assistance by multiplying weekly earnings by the number of weeks that passed between the discharge and the trial.

Loss of future earnings, however, may depend on whether and when a plaintiff will be able to find equivalent employment. Vocational experts project the likelihood of finding equivalent employment and the time frame in which that might be accomplished. While many judges will not award future pay for a time frame in excess of two or three years, an older worker might use vocational testimony to gain an award of future pay through the worker’s expected retirement age.

Gabriel Sanchez was employed by San Antonio’s public utility service as a journeyman cable splicer. After a work accident, Sachez was diagnosed with post-traumatic stress disorder. San Antonio fired him before he was released to return to work.

Sanchez contended that the termination of his employment violated the Americans with Disabilities Act. He argued that he was terminated because he suffered from post-traumatic stress disorder (PTSD), a disabling condition. 

Sanchez retained a vocational expert to help him build a case for lost future earnings. Relying on medical evidence, the vocational expert assessed how PTSD would affect Sanchez’s future employability. The vocational expert concluded that Sanchez would never have the ability to earn the same income that he was paid by San Antonio. Using the vocational expert’s employability projections, a labor economist determined that Sanchez suffered $1.6 million in past and future lost wages and $1.325 million in lost retirement benefits.

San Antonio also retained a labor economist to provide expert testimony but failed to retain a vocational expert. The district court agreed that San Antonio’s economist would be entitled to testify that Sanchez’s economist overstated Sanchez’s future economic loss.  He was also entitled to express opinions about the validity of labor market data that Sanchez’s expert economist relied upon, because San Antonio’s expert had the same expert experience evaluating that data.

The court came to a different conclusion regarding the labor economist’s opinion that Sanchez’s vocational expert was too restrictive in identifying the kinds of jobs that Sanchez would be able to find in the future. The court cited precedent about the different roles played by economists and vocational experts: “When calculating future lost wages, economists typically rely on other experts—such as vocational rehabilitation experts—to advise them as to the income a plaintiff can probably earn due to his injuries. Economists then use that information in conjunction with actuarial data to estimate the wage loss the plaintiff will probably sustain over the course of his lifetime.” The court disallowed the economist’s testimony to the extent that it addressed issues that were within the expertise of a vocational expert.