Implications for Litigating Employment Cases in a #MeToo World

Implications for Litigating Employment Cases in a #MeToo World

Questions of social inequality—between men and women, between Whites and non-Whites, between those born in the U.S. and those who were not—have dominated and polarized our national discourse in virtually unprecedented ways.

In considering where and how this climate might come into play, employment litigation will certainly be affected. Jurors’ beliefs about social inequality, intergroup differences and disparate treatment are likely to play a role in their evaluations of claims of discrimination and harassment.

Questions of social inequality—between men and women, between Whites and non-Whites, between those born in the U.S. and those who were not—have dominated and polarized our national discourse in virtually unprecedented ways.

In considering where and how this climate might come into play, employment litigation will certainly be affected. Jurors’ beliefs about social inequality, intergroup differences and disparate treatment are likely to play a role in their evaluations of claims of discrimination and harassment.

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Overview

To understand the role that harassment and discrimination play in the workplace, DOAR surveyed one thousand adults from the New York and Los Angeles metropolitan areas. The survey included questions about basic demographics, personal experience with harassment and discrimination, and attitudes about immigration policies and the #MeToo movement.

* The New York area included NYC, Nassau, Rockland, Suffolk, and Westchester Counties. The Los Angeles area included LA, Orange, Riverside, San Bernardino, San Luis Obispo, Santa Barbara, and Ventura Counties.

The Effect of Discrimination and Harassment

Key Findings: Discrimination and harassment were personally relevant to respondents

Demographics

There were clear demographic factors that made some individuals assume a greater prevalence of discrimination and harassment than others.

Gender

Women estimated a higher prevalence of all forms of discrimination and harassment than men. The gap was widest for gender-based discrimination and harassment.

Women estimated a higher prevalence of all forms of discrimination and harassment than men. The gap was widest for gender-based discrimination and harassment.

Race

Non-Whites estimated a higher prevalence of both race- and gender-based discrimination and harassment than did Whites.

Non-Whites estimated a higher prevalence of both race- and gender-based discrimination and harassment than did Whites.

Age

Older respondents (those over 45) estimated a higher prevalence of age-based discrimination than their counterparts (those 45 and under).

The younger the respondent, the higher the estimated prevalence of all forms of discrimination as well as race- and gender-based harassment.

Older respondents (those over 45) estimated a higher prevalence of age-based discrimination than their counterparts (those 45 and under).

The younger the respondent, the higher the estimated prevalence of all forms of discrimination as well as race- and gender-based harassment.

Gender Divide

Key Findings: Men and women diverge on their experiences with race and gender-based harassment and discrimination

  • Note: Graphic reflects percent who “strongly agree” or “agree” with each statement.

Reporting

Key Findings: Retaliation is on people’s minds when they think about discrimination and harassment

  • Some Did Not Report Unequal Treatment To Employer Because:

Political Affiliation Matters

Key Findings: Our survey indicates that the political affiliation of a respondent closely relates to their perceptions of discrimination and harassment based on race, as well as gender-based harassment.

  • Perceived Prevalence of Discrimination Varies by Political Affiliation

  • Attitudes Towards #MeToo Movement by Political Affiliation

    Note: Chart reflects percent who “strongly agree” or “agree” with each statement.

Key Takeaways

When U.S. citizens enter a jury box to hear a case about alleged discrimination and/or harassment, they carry with them a plethora of personal and vicarious experiences that may color their perceptions of the case at hand.
Expert witnesses could be much more helpful to counsel if they were involved earlier in the case; not engaging with experts sooner could leave their reports vulnerable to attack by the opposing party.
Subject matter experts can help counsel not only retool the general approach to the case within the expert’s area of study, but also rebuttal reports.
Our findings strongly indicate the usefulness of political affiliation and political beliefs as proxy variables for employment attitudes.
Jurors are likely to believe that companies retaliate against those who report harassment and discrimination.
One should expect a reasonably high level of juror sympathy for employees who testify that they did not report the discrimination or harassment for fear of retaliation.
Among certain groups—most notably Republicans—the idea of a movement gone too far can gain traction.
Conducting jury research early in a case can:
  • Drive the retention of subject matter experts to explain certain aspects of the case
  • Highlight the need for testimony from lay witnesses, not previously considered central to developing the facts
  • Posit a theory of the case that makes great sense itself as the theme for trial
Consider certain broad groups as more likely than others to be plaintiff jurors:
  • Women
  • Those 45 and older for age discrimination cases; those under 45 for harassment cases (of any type)
  • Non-Whites
  • Those who have personally experienced discrimination or harassment or are close to someone who did
  • Democrats
Download the full report of our findings and strategic recommendations.
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