More than other employment cases, and certainly more than sexual harassment cases, jurors in discrimination cases will tend to vote according to their political philosophy. Whereas some liberal jurors can be dangerous for plaintiffs in a sexual harassment case in which they may feel that a sexual harassment claim is simply another form of admitting a woman’s inferiority and “need” for protection (a view propounded occasionally by “Feminists”), discrimination cases provide the jurors a clear forum to vote their conscience.
Although virtually anyone would say they are against discrimination, particularly racial discrimination, there are some people who would tolerate discrimination at the cost of doing business. These people tend to be conservative and tend to be Republicans.
More liberal and Democratic jurors will have grown up with a strong sense of the importance of equality and the elimination of bias. If they believe that plaintiff has a valid case of discrimination, they will be likely to unleash their anger at the offending corporation with a very large verdict. It will be their opportunity to strike back after having lived a lifetime with this discrimination that they could do nothing about. IN race discrimination cases, the plaintiff’s attorneys will want disenfranchised jurors and jurors who feel a commitment to help those who have been disenfranchised by our society.
Age discrimination cases present some different factors. Most age discrimination cases present a basic philosophical issue; that is, do companies owe a duty to older employees who may be less competent and enthusiastic than younger employees. As technology rapidly moves forward, it is difficult for many older employees to keep up. Is that a reason to fire them in favor of younger, more competent employees or not? There are some jurors who will believe that a company should maintain its loyalty to older employees even if they are less productive, and, there are other jurors who will believe that the cost of doing business requires finding the most productive person for the job. Although, again, juror attitude will tend to break down along liberal versus conservative lines, there will probably be a fairly large segment of young, liberal jurors who have in some way been negatively affected by a society which protects its older employees. They may have had difficulty entering the job market, frustration with seemingly incompetent older employees at their job or somewhere where they have done business. These jurors will tend to identify with the defendant, who is usually defending its actions by claiming that the plaintiff has become inefficient or that the job requires more technical expertise than plaintiff possesses.
One of the best indicators of how a juror may react to an age discrimination case is the way the juror treats his or her own parents or grandparents. Is the juror taking care of his parents or grandparents? If he or she is, how do they feel about this situation? Is it an unwanted obligation or is it something that they genuinely like to do and believe should be done?
As in wrongful termination cases, see SS23.10, a key factor will be a juror’s belief as to whether the government should regulate age discrimination in the workplace. This may become particularly important when deciding whether to accept or reject a juror who is an older worker. The temptation may be to leave an older working juror on the jury, believing that they will relate to the plaintiff and feel vulnerable to the power of a large corporation, however, a very conservative older juror may still believe that the “company” is always “right,” and that companies will do what they have to do to maintain the profit margin. These older workers will view themselves as “valuable” and not incompetent because they are older. Therefore, they may be willing to accept the company’s position that the plaintiff was fired based upon poor performance rather than age. They will not fear their own dismissal because of their unconscious need to see themselves as invulnerable.
Religious discrimination is an even more subtle subject and a difficult area to sort out who will be or not be a good juror for a particular side. Once again, everybody will say they are against the idea of discrimination based upon religion, yet there is a long history in our society and prior societies of gross intolerance towards religious differences. Even in our somewhat advanced society, there are religions in which people act or dress “differently,” which brings out the intolerance of many less liberal, intolerant people. For instance, it would probably be much more difficult to find twelve people to reach the conclusion that a Hare Krishna has been discriminated against than it would be to find twelve people who find that a Jew or a Catholic has been discriminated against.
What makes this more troubling is that there is almost no way to ask the right questions in open court to find out who will be tolerant and who will not be tolerant. A jury questionnaire, See SS22.30, may be helpful, however, it is still highly unlikely that somebody will answer a questionnaire by stating that they hate one religious group or another. Probably the best that an attorney can do is to find out what the particular juror’s experience is with the religion in question; having somebody on the jury who says, “Some of my best friends are Jews,” is probably better than having a juror who has consciously avoided friendships with Jews. After learning everything that one can learn about the juror’s attitude toward a particular religion and experience with a religious group, plaintiff’s attorney must return to the concept that the defense will be claiming that they fired plaintiff as a result of poor performance or a reduction in force. Plaintiff will be claiming that based upon remarks that were made or a comparison with other religious groups, plaintiff was fired because of his or her religion. Conservative jurors are going to side with the ability of businesses to do what they need to do to make money, and more liberal jurors will be less tolerant of a business deciding to put profit ahead of the Constitution. So, again, it is useful to determine a juror’s political orientation.
Nonsexual harassment gender discrimination cases will find more liberal jurors voting for the plaintiff and conservative jurors voting for the defendant. Obviously, a critical factor will be a particular juror’s point of view on “women’s liberation” and the right of women to be treated as equals to men. It is not at all safe to assume that women will be more sensitive to plaintiff’s position in gender discrimination cases. A woman who believes that women should not compete with men in the workplace would be the plaintiff’s nightmare juror. There is probably no way to generalize who will or will not be a good juror in a sexual discrimination case. Basically, an attorney wants to look at the way that a particular juror has lived his or her life in his or her relationship with his or her spouse and the relationship of juror’s parents to one another. Do they treat people of the opposite sex as equals?
Working women will tend to be better jurors than non-working women and the children of working women will almost always be good jurors for the plaintiff. The spouse of a working woman will be more difficult to stereotype. He may resent the fact that his wife works or the fact that his wife works may make him feel inadequate. A sex discrimination case may give this type of man a chance to even the score against women in general. It will be necessary to uncover how a man feels about his spouse working.
22.20 – USE OF FOCUS GROUPS IN PLANNING JURY SELECTION AND TRIAL STRATEGY
As always, focus groups and jury consultants will be very valuable in determining how to pick a jury in a discrimination case. Of particular importance will be to carefully watch the deliberations of a mock jury. How will pro-business jurors defend the acts of the corporation in light of plaintiff’s evidence of discrimination? Who will be the plaintiff’s jurors who can stand up to the conservative pro-business jurors? What arguments will they use to attempt to influence the pro-business jurors? Which arguments will work? Careful study of the arguments utilized by the jurors in deliberation will allow plaintiff’s attorney to plan his or her own evidence and the testimony which will be introduced at trial?
22.30 – USE OF JURY QUESTIONNAIRES
Since almost no one will admit to bias based upon race, religion, age, or sex in open court, jury questionnaires are essential in employment discrimination cases. However, demographic information obtained in the questionnaire will likely be more useful than any substantive answers to questions about bias. Although the rare questionnaire may reveal an admitted bias against a particular segment of society, probably the most useful non-demographic information which you will be able to obtain will be in answers to questions such as, “Have you ever had a bad experience with a person of a particular race or religion?”
In an age or gender discrimination case, everyone will have had bad experiences with older people and people of either gender, therefore, in age or sex discrimination cases, a more useful area of inquiry on a questionnaire may be to obtain information which brings out how the juror treats people of plaintiff’s gender or older people.
22.40 – SAMPLE VOIR DIRE QUESTIONS
1. Were you raised in any particular way on the subject of whether it was right or wrong to discriminate against people based upon their race?
2. Did your parents have any particular prejudice or bias against people of any race?
3. Do you think you grew up with any bias against people of any race?
4. Were you raised in a racially-integrated neighborhood?
5. What were your experiences in that neighborhood or with people who lived in the neighborhood who were of a different race?
6. Is the neighborhood you live in now integrated?
7. Have you had any bad experiences with people of a particular race?
8. Was the school you attended integrated?
9. What were your experiences with people of a given race at school?
10. Is the place where you work integrated?
11. What are your experiences in the workplace with people of a certain race?
12. What are your feelings about Affirmative Action?
13. Do you have any feeling that people of a given race are less competent at their jobs than other people?
14. Do you have any feeling that people of any race are lazier at their jobs than other people?
15. Do you have any feeling that people of any race are less trustworthy at their jobs than other people?
1. Do you have any feelings about whether it is okay for employers to fire long-term older employees once their performance slips?
2. What do you think an employer should do once an older employee’s performance falls off?
3. Do you think employers should have the right to let older employees go so they can bring some new blood into the corporation?
4. What is your relationship with your parents like?
5. What was your relationship with your grandparents like?
6. How often do you see your parents?
7. How often do you see your grandparents?
8. Have you ever felt frustrated in a job search because all the jobs were taken up by older employees? What feelings did you have about that?
9. Have you ever had difficulties dealing with an older employee because they were too slow or inefficient? What feelings did you have as a result of that experience?
10. Did your frustrations dealing with an older employee make you believe that older, inefficient employees should not be in the workplace?
1. Did you grow up with any biases against any religion?
2. Were your parents biased against any religion?
3. Do you think you grew up with any bias against people of any religion?
4. Were you raised in a religiously-integrated neighborhood?
5. What were your experiences in that neighborhood or with people who lived in the neighborhood who were of a different religion?
6. Is the neighborhood you live in now integrated?
7. Have you had any bad experiences with people of a particular religion?
8. Was the school you attended integrated as to religion?
9. What were your experiences with people of a given religion at school?
10. Is the place where you work integrated?
11. What are your experiences in the workplace with people of a certain religion?
12. Do you have any feeling that people of a given religion are less competent at their jobs than other people?
13. Do you have any feeling that people of any religion are lazier at their jobs than other people?
14. Do you have any feeling that people of any religion are less trustworthy at their jobs than other people?
1. Do you believe that men and women should be treated equally in the workplace?
2. If a man and a woman were equally qualified for a promotion, do you believe that the man should receive any preference?
3. What are your feelings about Affirmative Action as it relates to women?
4. Are you a member of any feminist organization?
5. Have you ever been in a position to hire employees?
6. If so, have you hired men and women in equal numbers?
7. Are there any reasons why you would hire a man over a woman?
8. Do you have any feelings about whether men make better employees than women?
9. Do you think the fact that a woman may be pregnancy leave should affect whether or not they are hired?
10. Do you think the fact that a woman may take several years off from her job to raise children should affect whether or not she is hired?
11. (To a man) Does your spouse work? If so, why? If not, why not?
12. What are your feelings about your spouse working?
13. Would you rather your spouse not work?
14. Do you feel your spouse is treated like an equal in her workplace?
22.50 – OPENING STATEMENT
An opening statement in an employment discrimination case should begin with a theme that we as a society have determined that it is not all right for an employer to make employment decisions based upon a person’s race, religion, age or gender. The defendant has broken the rules by discriminating against the plaintiff, and, the jurors will be in charge of correcting the wrong committed by the defendant.
The focus of the opening statement should be on why we have rules against discrimination and how the defendant broke those rules. The focus should be directed away from the particular plaintiff, who the jury may not care very much about, and should be placed on the immoral, unjust behavior of the defendant. The case should be laid out in such a way that the jurors will feel that they, or somebody they know, could be the next victim of this type of misconduct.
The injury to the plaintiff should be downplayed. The injury to the plaintiff is the misconduct of the defendant and the loss of a job and what that job meant to the plaintiff.
Nobody likes to be discriminated against. Even people in classes not protected by the law, i.e. white people, young people and males, do not like to be discriminated against and treated unfairly. The opening statement should be directed at showing the discriminatory nature and the injustice of the defendant’s misconduct. It should be pointed out that the defendant could have avoided its discriminatory behavior without reversely discriminating against employees outside of a protected class.
If the employer ratified or ignored the misconduct of a particularly biased supervisor, then that fact should be emphasized. Everybody believes that everyone deserves an equal shot at success. This particular plaintiff was held down, not because of his or her performance, but rather because of his or her gender, race, et cetera. That is not fair, and the evidence will show that the plaintiff was treated unfairly and illegally.
22.60 – PLANNING ORDER OF WITNESSES
If there is a particularly bad defendant, he or she should be called as an adverse witness and the first witness. The next witness should be co-workers or former co-workers who will verify the discrimination, or who have also been discriminated against. Once the jury is “warmed up,” the plaintiff should be called as a witness. The plaintiff should be followed by any damage experts.
22.70 – TESTIMONY OF PLAINTIFF’S EXPERT PSYCHOTHERAPIST
As in all employment cases, psychotherapists should be utilized with the utmost caution. Since damage awards will flow more from the injustice of the situation than any injury to the plaintiff, there are not a lot of reasons to utilize a psychotherapist as an expert. If the plaintiff has a true mental disorder, as opposed to garden-variety emotional distress, as a result of discriminatory conduct of an employer, then plaintiff’s attorney may want to utilize a psychotherapist, as long as he or she will not do more harm than good. The risk is that the use of a psychological expert will open up otherwise privileged information about a plaintiff’s background and prior job performance which may be quite negative.
Since all jurors do not want to be discriminated against, and inherently understand the powerless feeling that comes from being wrongfully discriminated against, there is not a lot of need to call a psychotherapist on the issue of damages.
However, if for any psychological reasons the plaintiff is going to make an unattractive witness, i.e., he or she is very angry and bitter, then it may be useful to have a psychotherapist testify before the plaintiff to explain the reasons for his or her anger and bitterness.
In any event, a psychotherapist should not be called as a witness until liability has been pinned down.
For testing of psychological experts generally, see Chapter 13.
22.80 – TESTIMONY OF A LICENSED VOCATIONAL EXPERT
The testimony of a vocational expert will be particularly useful in a discrimination case. There is a great deal of statistical data available that may only come into evidence through a vocational specialist which deals with the subject matter of how difficult it is for people of certain age, race, and gender to obtain and maintain employment. A plaintiff who is a member of a particular class who has been fired will have a far more difficult time obtaining similar employment than a member of a non-protected class. Although jurors will intuitively know this, a vocational specialist will be able to highly difficulties that the plaintiff will face.
22.90 – TESTIMONY OF A PLAINTIFF’S ECONOMIST
An economist will determine the loss of future earnings in income by determining a discount rate (i.e., the rate of interest rate over the rate of inflation).
22.100 – TESTIMONY OF LAY WITNESSES
Liability must be established in part through the testimony of the defendant and its current or former employees. Therefore, the testimony of the wrongdoers or current or former employees who witnessed the acts of wrongdoers must be highlighted and presented to the jury early. The plaintiff as a witness is not as important in a discrimination case as he or she is in a wrongful termination case; therefore, he or she should testify later in the case, and his or her testimony should be as short as possible. The plaintiff will be attacked as a poor performer, therefore, the adequacy of his or her performance should be highlighted and the claimed inadequacies should be explained away. However, that should be just about the extent of the plaintiff’s testimony. It may be worthwhile to ask the plaintiff how he or she feels about being discriminated against, what the job meant to the plaintiff.
Be careful when calling as witnesses similarly-situated co-employees who you believe were treated more favorably by the employer. Although they may provide some testimony which will help the plaintiff’s case, they may also appear more competent than plaintiff.
22.110 – OTHER EVIDENTIARY CONSIDERATIONS
A discrimination case, as opposed to a wrongful termination or sexual harassment case may be extraordinarily document-intensive. This will be particularly true in cases in which there is no evidence of direct discriminatory statements or conduct toward the plaintiff. In this type of case, the plaintiff is trying to prove that people of his or her age, race, sex, or religion were treated differently by the company than white, young, Christian males. Aside from the monstrous discovery wars which will be fought in attempting to collect the internal data of the defendant which will reveal the discrimination, plaintiff’s attorney must be careful that he or she is able to get all this evidence admitted at the time of trial. The defendant may claim that this information is hearsay, however, plaintiff will claim that it should be admitted as the business record exception under the hearsay rule. Plaintiff’s attorney must be careful to lay a foundation through the appropriate witness as the authenticity of the data that he or she is attempting to introduce.
Further, plaintiff’s attorney should be prepared to face challenges to the admission of the evidence of the defendant’s discriminatory practice based upon the privacy rights of other employees. Information which would violate privacy rights should be whited out by stipulation or order of the court so that the data can be admitted while other employees’ identities, salaries, et cetera are protected.
22.120 – CLOSING ARGUMENT
As in the opening statement, the emphasis of closing argument should be on the misconduct of the defendant rather than the injury to the plaintiff. Every effort should be made to allow the jurors to develop anger at the defendant and an equal effort should be made to avoid any plea toward sympathy for the plaintiff.
This is one of those rare cases in which plaintiff’s attorney can talk about the founding fathers of our country and our Constitution without appearing overly dramatic. The laws that we as a society made outlawing discrimination really are one of the things that have made this country great.
After laying out the basic principles of the laws that protect against discrimination generally, the laws which protect against discrimination in the workplace should be emphasized. Why is it that discrimination in the workplace is intolerable? It is because people need to work to survive. We are not talking about societal manners, pleasantries or the lack of pleasantries; we are talking about laws against discrimination put into effect to insure that everyone who wants to work and is qualified to work can work and can eat and can feed a family. If the discrimination is tolerated in this case, what type of signal will it send to other employers who would be more than happy to act on their individual biases if they can get away with it?
In less dramatic cases in which plaintiff was not fired because of race, but rather was discriminated against in terms of promotion, then focus can be made on the American work ethic. The American work ethic is like an invisible handshake that is made between employers and employees. That handshake says, “If you work hard and give your life and your soul to me, then, you will advance in this company based upon your will and performance, and not based upon your color or age or religion.”
In cases in which the employer is attempting to defend itself by claiming that the discrimination was an isolated act of an isolated employee that the defendant never knew about, then it is probably fair for the plaintiff’s attorney to claim the defendant is acting like an ostrich. Compare defendant to the people who knew of the existence of the concentration camps, yet failed to act to stop the abhorrent behavior, and pretended they did not know. Defendant has an affirmable duty to make sure that discrimination does not happen. Having policies in place that seek to prevent discrimination is not enough. Those policies must be monitored and enforced or they are useless. There are certain things which are intolerable to our society, which require careful monitoring, and discrimination in the workplace is one of them.
22.130 – REBUTTAL ARGUMENT
The defense argument will be that discrimination did not exist, was not ratified and/or that plaintiff was a poor performer, who was not advanced or was fired based on poor performance or a reduction in force and not due to discrimination. If the jurors believe the defense argument, then there is virtually nothing that plaintiff’s attorney can do on rebuttal. However, if the jurors reject the defendant’s argument, plaintiff can make a more powerful rebuttal.
In a discrimination case, rebuttal argument should motivate the jurors to right a wrong that they already believe exists and to make justice by awarding a large verdict. Plaintiff should save his or her best motivational arguments for rebuttal. Hopefully, closing argument has given plaintiff’s attorney the opportunity to convince the jurors of the correctness of plaintiff’s position and the unjustness of the situation. Rebuttal argument is an opportunity for plaintiff’s attorney to motivate the jurors to do something to correct the injustice, first, by awarding actual damages, including compensatory damages, and also by awarding actual damages.
Rebuttal is a time to explain to the jurors their role in society, particularly in a punitive damage case. They have a rare opportunity to correct an injustice and right a wrong. The injustice can be corrected only through the one thing that companies understand, that is, the pocketbook. Corporations like defendant have no heart. They exist solely to make money. The only punishment that will matter to them is the punishment which the law allows the jury to deliver, that is, to award punitive damages to the plaintiff. Any amount of punitive damages will not help. There needs to be a punitive damage award that the company feels, and the only place where a company can feel is its wallet.
Plaintiff should not waste time in rebuttal answering each and every point that the defendant raises in his or her closing argument. Jurors do not keep score cards and a trial is not a debate in which the side that makes the most good points wins. The side that is on the side of right wins. The side that is on the side of wrong loses, and, in a discrimination case, the jury cannot correct the misconduct of the defendant by giving plaintiff his or her job back or saying it is sorry, but rather the only way it can correct its discriminatory conduct is through a monetary award.
This plaintiff has had the courage to stand up to this major corporation and take it on. The corporation, first, during this employment and now during the litigation and trial, has done everything it can to break the plaintiff down and attempt to send a message to the plaintiff and other employees that it is beyond the law and if any employee who is discriminated against attempts to “mess with it,” it will strike back with a vengeance. That vengeance will never cease, as demonstrated by defense attorney’s closing argument, in which he or she attacked the plaintiff and his or her right to seek legal redress for defendant’s wrongs. It is now the jurors’ opportunity to send a message back to the company, and companies like the defendant, which is, that if you are going to profit by the sweat and labor of your human employees, then you have to treat them like human beings, with dignity, respect and fairness. We as a society have determined that corporations have to limit the power of corporations to discriminate. We encourage corporations to produce and succeed and make profit, and they can even do that without caring particularly much about their employees, however, there are limits. We can not ask the corporation to have a heart, however, we can ask a corporation to be fair and follow rules.
As a society we recognize that employees need protection against large corporations. When a corporation gets out of hand, as it did in this case, its misconduct must be corrected. The corporation must be told to follow the rules which we have created for it, and treat people with dignity, justice and fairness as the Constitution requires.
22.140 – JURY INSTRUCTIONS
Jury instructions will obviously vary depending upon the law in a particular jurisdiction.
This article was authored by John D. Winer. Winer, Burritt & Scott, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.