ITC Quarterly - July 2000
It's Getting Tougher for Defendants to Select Juries in Sex Harassment Cases
David Island, Ph.D.
Island Trial Consulting, LLC
San Francisco
July 2000
Introduction
Without question, jury selection in sex harassment cases is more difficult today for defendant perpetrators and for defendant companies and businesses than it was at any time in the past. In January 2000 in Contra Costa County, California, in order to obtain the primary panel of twelve, with three alternates, sixty prospective jurors were questioned by the court and the attorneys for their suitability to serve on a panel in a sex harassment case, twice as many as normally needed. The only good news for defendants is since people hold such strong views on issues surrounding sex harassment, that when speaking of their experiences and thoughts, many prospective jurors virtually self-destruct during voir dire and are rather easily removed for cause. The bad news is that the pool of pro-defendant jurors, admittedly shallow from the start, seems to be shrinking. Further, by the time the pro-plaintiff prospective jurors are finished making their speeches during voir dire, the entire panel has been sensitized to issues and heard a one-sided version of the case. Some emerging data suggest that, despite widespread education about sex harassment, it is not diminishing. The July 3, 2000 issue of the National Law Journal reported that in California, with casual dress more and more commonplace in law firms, sexual harassment claims have increased. Sex harassment is emotional, hotly debated and for many a socially difficult topic to handle.
New Battleground
We've come a long way from suffragettes and equal rights for all citizens in 100 years. Few would doubt that significant progress has been made. Of course, the fundamental battles are far from over. Clearly, discrimination of all kinds is extant, and huge numbers of Americans believe that true equality among all people in the United States is still a far off dream. Many prospective jurors believe that prejudice and discrimination against women and minorities has just gone underground and is much more subtle and hard to prove today than 25 years ago. "We all know it's there," said an African American woman in a recent jury selection. "It's just harder to prove."
Today the battleground is not in the legislatures. It isn't even in the courts. The new battleground is actually in the workplace. Though the "glass ceiling" still exists, the dominant subject on workplace rights is interpersonal conduct, not the right to hold a job at equal pay or career advancement opportunity. Regulation of conduct, verbal and physical, is what the fight is about. This issue frequently centers on the use of power by men over women (and other minorities) in the workplace. Quid pro quo allegations often accompany a sex harassment claim. The contemporary result of all this is that a wholly new area in employment law has been created, and employers have taken important steps to protect workers from harassment. Employees are encouraged to register complaints about fellow workers, supervisors, managers, bosses, and executives based on what those in power have said to or done to the complainant. The concept of hostile work environment has taken on an entirely new meaning, one where control of interpersonal conduct is at the core of this subject. It is a hot and controversial topic.
Current Societal Phenomena
The National Dialogue
One needs merely to listen to the daily news, talk to friends, neighbors and relatives, read articles in any newspaper or magazine, go to work, watch television, or pay attention to public events to sense the breadth and depth of the discussion going on in America about sex harassment. People are asking in one way or another: "What is sexual harassment?" "Why didn't she just kick him in the groin?" "Does this mean I can't tell a simple joke?" "It's about time people joined civilized society." "Men don't harass other men, do they?" "Isn't this sex harassment stuff just a matter of 'she says; he says?'" On and on. The comments, questions and scope of this discourse are impressively widespread throughout our society and also surprisingly sophisticated. This is one dialogue not driven by the media. Ordinary people, who become jurors in your next case, think about it, talk about it and are interested in it because they see it every day. The media need not remind anyone of its presence in our lives. Virtually everyone is an "expert" on sex harassment, and a large amount of information about the topic of sexual harassment exists in the public domain.
The Maturing of America
What are the consequences of this national discussion on sex harassment? America, it seems, is getting older, maturing as it were. As a culture, we have moved light years beyond taking moral and religious positions on sexual topics toward an inalienable rights and legalistic position.
Americans have seen countless reports of court cases, where they have concluded that a plaintiff merely wanted money. Americans have become much more callous about plaintiff motives, much more inured to the reality of greed, much more skeptical of claims where there is no corroboration, and much more sure that their own experience in the workplace is a valid standard. Thus, one aspect of national maturity we see comes from the broad educational effect of extensive media coverage of legal issues and the courts. Americans "just don't believe it" any more when they hear abbreviated accounts of allegations or news bites about why a lawsuit has been brought. Perhaps it's cynicism. We think it's maturity. In a sense, a kind of secular "Europeanization" describes emerging American views on sexual conduct.
Pervasiveness of Sexual Harassment.
Yet, sexual harassment is pervasive throughout the workplace. You don't have to look far or wide to find someone who believes that they were harassed or to find someone who admits to having been a harasser. Women and now some men are suing for sexual harassment. In one recent California case, a man sued his employer for having been harassed by both men and women in the workplace. Other forms of harassment and discrimination against gays, ethnic minorities, immigrants and others are seen as part and parcel of the whole picture of subtle second class citizenship, people kept in "their place" by a desperate white male power elite, whose base of power is clearly threatened. A large proportion of the population, when encouraged to do so, such as in voir dire, will speak of harassment, retaliation and discrimination in the workplace against themselves or someone close to them. The vast majority of these individuals are intolerant of harassment. They speak up, name the harassment, and let the chips fall where they may. These people serve on juries in sexual harassment cases.
Jury Selection Developments
Here's what's new and why. Because virtually everyone in America is exposed in some depth to the news and discussion about sex harassment, every prospective juror has an opinion about it, has thought about it, and has an attitude toward what they understand sex harassment to be. In addition, it appears that somewhere between 25 and 50% (perhaps higher) of female prospective jurors have had personal experiences with men in the workplace, episodes, which they consider, especially in retrospect, to have been sexual harassment. Forty years ago there was no name for it. Thirty years ago it was material for jokes. Only in the last 10 years has sex harassment become a serious topic. Stories told by female jurors when recounting their memories of sexual harassment cast a powerful emotional shadow over the courtroom during jury selection. Some cry; many express anger; and virtually all will tell their stories in detail to the court. Many such personal histories are entirely credible, poignant and evoke strong sympathy, if not anger, toward male perpetrators. Thus, jury selection in a sex harassment case is extraordinarily different from that in most other kinds of civil litigation. Jurors already have very strong views on the very matter on which they will be called to render a verdict.
In the post Anita Hill era, we learned that plaintiffs, in cases where harassment was at issue, could simply ask the question, "Do you believe Anita?" and the entire jury pool would be dramatically split (often by gender), with approximately 75%, saying "Yes." Thus, the plaintiff's peremptory challenges were easily identified in the remaining small group of jurors, the 25% saying "No."
Today the situation is even worse for a defendant. In answer to this question, "Do you think the sole fact that the defendant, a manager, dated the plaintiff, a subordinate, constitutes sex harassment in and of itself?" a shockingly large number of prospective jurors, men and women alike, answer "Yes." Some of the most outspoken prospective jurors are middle aged male managers and supervisors who have been trained in recent years about all the issues, rules and new age ethics in sex harassment. These are men who, as supervisors and managers, handle sexual harassment complaints frequently and are disgusted and angry at their fellow males. In voir dire, these men speak out about a defendant perpetrator's "bad judgment" or "stupidity" at dating a subordinate, or, even at more-or-less benign conduct which could lead to accusations of harassment. While many men are in denial about the development of standards in the workplace governing harassment, the new generation of male managers and supervisors are not. They are the new "enforcers."
Many jurors quickly learn that if they voice strong opinions on the matter they will be excused for cause. We suspect that between 10 to 25 percent of the jurors exaggerate their opinions in order to be excused from long sex harassment trials. Most of those are pro-plaintiff jurors.
Current Benefits for Plaintiffs
Education of the Panel. Plaintiffs today can capitalize on the public interest in, knowledge about, and exposure to concepts about sex harassment in the workplace. Plaintiff lawyers in voir dire can ask a wide-ranging series of questions about a prospective juror's experience with sexual harassment, attitudes about it and opinions on it. Most jurors today are employed in workplaces where significant attention is paid to sex harassment policies, rules and training. The benefit of plaintiff's voir dire is extensive education of the jury pool about issues and contentions in their case. Strong anti-defendant sentiment often builds during plaintiff's voir dire. In one recent case, the alleged perpetrator of the harassment was actually booed and hissed by the sworn jury when he later took the witness stand!
Shaping the Eventual Jury. The pool of prospective jurors who will favor the plaintiff is deep, much deeper than the available pool favoring the defendant. Thus, during peremptory challenges, a skillful plaintiff lawyer can pass strategically, thereby saving remaining peremptory challenges for later use in shaping a pro-plaintiff jury.
Widening Scope. Contrary to some public opinion and some emerging law, the boundaries of what constitute sex harassment appear to be expanding. With this expansion, the opinions against certain language and certain behavior in the workplace become more diverse. Prospective jurors have increasingly new and varied political views of harassment. Even though many people find their life mates at the workplace, the danger is already present that dating a co-worker could be considered harassment in certain circumstances by some people, especially when a status differential exists.
No Fear. More and more, we see that prospective jurors show no fear or reticence about relating their own personal stories of harassment or in taking what amounts to strong political positions on the subject in open court during voir dire. The courtroom literally explodes with emotion when one prospective juror after another relates stories of their own harassment. Plaintiff lawyers show an encouraging willingness to address sensitive topics in open court and show jury panels that fearless disclosure is appropriate. In contrast, jury consultants often have to urge the defense trial team to ask the tough follow-up questions in voir dire about these sensitive issues.
Unlikely Plaintiff Advocates. In jury selection on a sex harassment case the old saw, "You can't tell a book by its cover" is truer than ever. The most unlikely appearing prospective jurors speak out against sex harassment, prejudge a case, and take exceedingly broad and strident political positions on the topic. Men whose demographics would otherwise suggest a strong pro-defendant outlook in other types of civil actions become unlikely and powerful plaintiff advocates in a sex harassment case. Women whose demographics suggest that no sex harassment would ever have been tolerated by them similarly will side instantly with the plaintiff upon hearing only a neutral statement of the case. In sex harassment cases, more than almost any other kind of civil litigation, demographics cannot possibly predict defendant leanings.
Current Benefits for Defendants
Hung Juries. Some polarization of the jury venire has occurred. Most people have formed a strong opinion on these general issues. The split does not always clearly favor one side or the other but is divisive. As a result, we expect more hung juries on these topics. We have already observed an increase in hung juries in mock trials on sex harassment and related employment cases.
Delay in Plaintiff's Complaint. Defendants are helped by plaintiff's delay in filing a complaint or in plaintiff's reticence to come forward in a timely fashion to complain. Many jurors are critical of the complainant for not reporting incidents to the union, not using company complaint procedures and for waiting for a long time to file a lawsuit. Many jurors are not sympathetic to a woman who waits a year, for instance, in the face of ongoing harassment before utilizing company or government procedures with which to help herself. Other jurors are critical of any complainant who did not act decisively to protect herself, to report an incident, or to seek assistance of a physician or other caregiver. Jurors ask, "Why did she wait so long before doing anything about it, if it was so bad?" Almost everyone these days believes that "victims should complain" and raise a ruckus about sex harassment. People are less and less sympathetic with a plaintiff who claims she was fearful of retaliation or termination. Jurors just don't buy these obsolete plaintiff explanations. Clearly, the more education and status that a harassed woman has, the less likely that delay, or any excuse for not complaining and initiating remedies, will make sense to jurors.
Knowledge of Complaint Procedures. Jurors are now more aware of processes and procedures for responding to sex harassment at their own place of employment. Many, if not most, jurors perceive women as more empowered today, or at least as having more tools at their disposal for handling harassment than in times past. Jurors question why a plaintiff doesn't go directly to a labor relations board, for example. Jurors are quick to fault plaintiffs for not taking steps to remedy the situation about which they complain. Thus, jurors today readily place onto the plaintiff the burden to use the procedures available to her in a timely fashion. Many now believe that filing a lawsuit is the last step in the remedy process and look askance at those who quickly involve lawyers.
Company Investigation. Nothing is as important to the defendant as a competent, reasonably independent, company investigation into the incident(s) as soon as notified. The report should be shown to the jury with the results highlighted. If the company, the employer or defendant took appropriate, immediate action to end the harassment or deal with the harasser, then juries will devalue plaintiff's claims. The plaintiff's case is assisted, on the other hand, if the investigation was not begun promptly, not thorough, not completed promptly, and if its recommendations were not implemented or conveyed to the plaintiff.
No Immunity. Plaintiffs are not immune from attack. Few plaintiffs are completely blameless. Prospective jurors now know that there is always more to the story than is reported by a plaintiff, particularly in a sex harassment case. We have observed that negative personal data, revealed about the plaintiff, hurts the plaintiff's credibility. The strategy is called "attack the accuser" or "blame the victim." Due to scandals involving celebrities and politicians, jurors have come to accept the likelihood that there must have been some invitation by the plaintiff, or that what happened must have been close to mutual consent. Most of our defendant lawyer clients, therefore, are less fearful today to be somewhat harsh with the plaintiff. This new development results from the conditioning effect of media coverage of scandals. The rules have changed, and defendants profit from this evolution in public opinion.
Consistent Story. Jurors want plaintiffs to have a consistent and believable story. Frequently, they do not. In a recent case in San Mateo County, California, the defendant obtained a defense verdict, in part because the story told by the plaintiff was neither consistent nor credible. Jurors did not believe the plaintiff who said that, after the alleged "attack" on her, she went over to the defendant, sat on his lap, and put her arms around him in order to "defuse the situation." Her story became even less credible when new and changing reasons were given for her behavior. Juries also expect the plaintiff's story to be reliably confirmed by someone else, such as a trusted co-worker, who was told about the incident. If the plaintiff has received therapy but did not tell the therapist about the harassment, the plaintiff's claim is downgraded significantly, if not wholly disbelieved.
Current Developments Affecting Both Sides
Unwillingness to Follow the Law. In the two most recent cases we have worked on, a surprisingly large number of prospective jurors boldly stated to the court in open session that they could not or would not follow the law as given to them if they personally disagreed with it. In those particular cases, such sentiments hurt the defense. Jury nullification is taking on a more ominous tone. Groups, such as FIJA (Fully Informed Jury Association) and the CALA (Citizens Against Lawsuit Abuse), have been formed to teach prospective jurors to resist following the law and to recruit them to this political view. These groups have massive underwriting for their campaign ads. CALA's ads in Texas read, "Lawsuits -- We all pay, we all lose." FIJA members leaflet the public outside courthouses in conservative states, such as Arizona and Montana. It is hard to say which side in a civil case is hurt more by the growing popularity of the message of these groups, but at first glance, plaintiffs are probably most severely affected.
Developing Law. Many prospective jurors become aware that the law governing sexual harassment is in an early developmental stage. Harassment has been around since the beginning of time, but there is only about 20 years of law on the topic. Despite the breadth of the discussion and understanding of sex harassment, however, jurors frequently cannot agree on standards, and there is little in the law to help them. Some dismiss the perpetrator's conduct if they, themselves, believe they could have "handled it." These jurors bring their own workplace experience to the courtroom, and that is what becomes the standard for a defendant's behavior in that case. In contrast to jury nullification, these jurors follow the court's instructions but tend to interpret the law through the practical sieve of their own experience. It is possible that the public is further advanced in its thinking about sex harassment than the law is definitive. Thus, sex harassment is an issue similar to abortion. Two-thirds of the people in the United States believe that abortion should not only be permitted, but that the decision to have an abortion should be entirely left to the pregnant woman. Yet, legislatures and congress cannot seem to get this message and lag far behind public opinion. In both instances, the law has yet to catch up with the public, and here the dominant public view is mature about these topics. Juries increasingly reflect this maturity.
Can Anything More Be Done to Help the Defense?
It is clear to us that about twice as many prospective jurors are needed for proper jury selection in a sexual harassment case than in other employment cases. Many prospective jurors become emotional and vocally angry during voir dire. One way to avoid this situation is to try to persuade the court to adopt a jury questionnaire, so that at least jurors respond privately to questions in writing outside the public arena of oral voir dire in open court. On sensitive areas, the attorneys should be prepared to request voir dire in chambers before the entire panel is unavoidably affected by outbursts. Judges often seem unprepared for and are shocked by the strong opinions voiced by prospective jurors. Seasoned attorneys must educate the court about this potential, prior to the start of voir dire, to avoid the circus like atmosphere that can develop, when one juror after another, feeding on each preceding juror's story, has access to the soap box presented in voir dire to make their speeches. However, in the absence of voir dire in chambers or the use of a jury questionnaire, we strongly advocate a wide-open voir dire. It is far better to expose the dangerous prospective jurors during voir dire, no matter how damaging the comments may be, rather than be surprised after the verdict is in. Typically, the only way to obtain a reasonably unbiased jury in a sex harassment case is to go ahead and let prospective jurors release their emotions during oral voir dire. At least then the defense attorney stands a chance to remove some jurors for cause and use peremptory challenges on the other worst ones. We encourage our attorney clients to raise all of the tough issues in voir dire (and on the questionnaire) and simply deal with the information as it arises.
Conclusion
Jury selection is much more difficult in sex harassment cases for defendants today than at any time in the past. Jurors readily prejudge the case, have strong politicized opinions about this entire social phenomenon, and freely tell their own emotional stories and state their views. Entire panels are educated about the issues in the first minutes of voir dire in open court. Successful cause challenges on many jurors should be the norm, not just the exception. We have not worked on a sexual harassment case in recent years in which our client, representing the defendant, failed to use each and every peremptory challenge. The result is that about twice as many prospective jurors are needed in sexual harassment cases than in other kinds of civil litigation. Prospective jurors reflect the growing discomfort felt by our citizenry for any kind of harassment, even though most remain skeptical of the validity of such claims.
Whether plaintiff or defendant, if you have a sex harassment case going to trial, you should be prepared for a difficult and emotional jury selection process. It may well be your toughest (and most exciting) jury selection yet.
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