Jury selection in employment cases provide unique opportunities and challenges for litigators. Employment cases differ from most other cases that come before a jury in that the majority of jurors come in with personal experience with employment. They have been employees, employers or both. In contrast to patent cases or securities litigation where we often hear juror concerns about being unqualified to render decisions, jurors in employment cases may actually overestimate their own qualifications for judging employment matters. They can run the risk of letting their self-professed experience-based expertise outweigh the case facts and even the law in their verdict decisions.
This particular risk increases when we consider several factors that have gained heightened importance in employment matters in recent years, including #MeToo, political polarization, and COVID-19. The #MeToo movement dramatically changed people’s thinking about gender-based behavior in the workplace, raising both willingness to discuss personal experiences and heightened attention to the prevalence of such experiences. And, once jurors are willing to discuss their experiences, research suggests they have much to say. In 2018 and then again in 2020, DOAR conducted surveys of 1000 American citizens in the New York and Los Angeles metropolitan areas. We asked about experience with workplace-based discrimination and harassment, estimates of both how prevalent such incidents are and the extent to which they are reported, and attitudes about the #MeToo movement (Brickman, E. & Zichella, R., Implications for litigating employment cases in a #MeToo world. DOAR Research Center, July 25, 2020).
These surveys revealed just how personal discrimination and harassment are to American jurors. Thirty-seven percent of our respondents reported personally experiencing at least one of these and an additional 20% said someone close to them had even though they themselves had not – a category we term vicarious experience. Most often, this harassment or discrimination was gender-based. Moreover, the extent of such experiences was directly related to beliefs about the prevalence of workplace harassment and discrimination: Those with direct experience gave the highest estimates, followed by those with vicarious (but no direct) experience. Those who reported neither saw discrimination and harassment as less common than did anyone else. And, experience with one form of disparate treatment (e.g., gender-based) was associated with higher prevalence estimates of other forms of discrimination and harassment as well. So presumably, jurors with more personal experience are coming into the courtroom with a stronger general predisposition to believe a plaintiff claiming discrimination or harassment.
Not surprisingly, belief in the prevalence of these workplace-based experiences was associated with more positive attitudes toward the #MeToo movement, and political affiliation was the strongest determinant of both of these belief sets, a phenomenon echoed in many other studies. Democrats believe discrimination and harassment are far more common than do Republicans, and are about three times as likely to support the #MeToo movement as Republicans (see, e.g., Brown, A., More than twice as many Americans support than oppose the #MeToo movement. Pew Research Center, September 29, 2022). While #MeToo has been the most-studied phenomenon in this regard, recent survey data suggest a similar political divide with regard to Black Lives Matter (Horowitz, J.M., Support for Black Lives Matter declined after George Floyd protests but has remained unchanged since. Pew Research Center, September 27, 2021) and we may assume this extends to harassment and discrimination against other groups as well. These are vital points for attorneys to bear in mind during jury selection in any case involving these kinds of allegations.
Moreover, the pandemic period has been marked by a rise in many forms of prejudice and discrimination outside of the workplace. A 2021 study found that 54% of Latinos living in the U.S. experienced some form of discrimination – for example, being called offensive names or told they should go back to their home country – during the first 12 months of the pandemic. (Noe-Bustamante, L., Gonzalez-Barrera, A., Edwards, K., Mora, L. & Lopez, M.H., Half of U.S. Latinos experienced some form of discrimination during the first year of the pandemic. Pew Research Center, November 4, 2021). Anti-Semitic incidents rose 34% from 2020 to 2021 (Anti-Defamation League, ADL Audit finds Antisemitic incidents in United States reached an all-time high in 2021. April 25, 2022.) and in New York, rose another 41% from 2021 to 2022 (Jerusalem Post, Hate in New York: Antisemitic incidents increased 41% in 2022. Jpost.com, January 11, 2023). A 2021 survey of Asian Americans found that almost half had experienced at least one anti-Asian incident since the start of the pandemic (Ruiz, N.G., Edwards, K. & Lopez, M.H., One-third of Asian Americans fear threats, physical attacks and most say violence against them is rising. Pew Research Center, April 21, 2021). And, of course, the rising passion behind Black Lives Matter in the wake of the murder of George Floyd and other police killings tell us all we need to know about Black Americans’ experiences of discrimination in the past three years. There is good reason to think that these experiences, too, will lead to heightened sensitivity among jurors hearing discrimination and harassment cases.
While our discussion thus far has focused on cases involving harassment and discrimination, wage and hour class action lawsuits will undoubtedly also be viewed by jurors through the lens of their own experiences of disparate treatment inside and outside the workplace. Furthermore, the past several years have likely changed our collective thinking about employer treatment of employees more generally. Virtually all of our workplace experiences underwent major changes, whether temporary or permanent, as employers adjusted to pandemic conditions. Jurors’ feelings about how their own employers handled those changes also come to bear on expectations and evaluations of employers’ behaviors in almost any labor and employment case. Going into these cases, it behooves you to learn as much as you can about jurors’ experiences in this regard.
Now that we have identified the attributes and experiences of jurors that can affect their verdicts, how do we use voir dire effectively to elicit the pertinent information from jurors? Three strategies in particular can be helpful here:
First, expand your thinking about what constitutes personal experience with disparate treatment, including harassment and discrimination. Given how vicarious experience with these events can affect jurors, we should be asking jurors not only whether they personally have felt harassed or discriminated against but also whether anyone close to them has. If they say yes, follow up with the same questions you would ask about personal experience.
Second, include in your voir dire key questions about pandemic experiences. Ask the questions that seem obvious – whether they were furloughed, laid off or suffered pay cuts, whether they felt their employer was sensitive to their health or other concerns, and whether they felt treated fairly, for example. But, also ask more broadly how they were affected by the pandemic, listening in particular for signs that a juror or her/his family had a particularly hard time medically and/or financially. We have seen in pre-trial research that those who felt most negatively affected by the pandemic tended to be the most punitive in their verdicts in criminal cases, and there is reason to think that this will spill over to civil cases as well. Such jurors may have especially strong feelings about your case, in the same way that we traditionally see with jurors who feel ill-treated by society and by life.
Third, use appropriately conducted internet searches of prospective jurors to gain as much information as you can about jurors’ life experiences and attitudes. One silver lining of the cloud of America’s volatile political rhetoric of the last six years is that people with especially strong attitudes on both the right and left have taken to social media sites to voice their views – and in an effort to share those views, may have more lenient privacy settings than do those with more moderate perspectives. The internet can be a treasure trove of information on pro- or anti-Trump positions, anti-vaxxer or pro-masking sentiment and other indicators of a generally conservative or liberal outlook. Similarly, proprietary databases yield valuable information on voter registration, personal histories of bankruptcy or liens and judgments, and employment history that may offer more detail than what you will hear in court.
All this said, it is important to exercise caution when conducting internet searches given broad variations in ethical guidelines from venue to venue. The New York City Bar Association’s guidelines, for example, are significantly stricter than those of the American Bar Association with regard to what kind of searching leaves an electronic footprint and is therefore barred. If you plan to do these searches it is strongly recommended that you either contract with a reliable and experienced firm to do them or, at a minimum, ensure that everyone searching is familiar with the pertinent guidelines and that your technology is set up for conducting anonymized searches within those guidelines. It is easier than you might expect to run afoul of these guidelines and experience has taught us that the consequences can be catastrophic for your client.
The key takeaway of the research findings and strategic recommendations here is clear: We are at an inflection point with regard to juror attitudes – a time of significant and sometimes rapid change, when we can no longer rely fully on past experiences in predicting how jurors will react to a particular case. At times like this, it is vital to gather as much new information as you can about what jurors are experiencing and thinking to guide you in jury selection and in your overall case strategy.
Reprinted with permission from the February 2023 edition of the “New York Law Journal”© 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or email@example.com.