Jury Selection Landmines

Jury Selection Landmines – Sexual Harassment Allegations, Corporate Judgments and Punitive Damages[dagger]

Baker, Kimberly D

I.

INTRODUCTION

The 1991 Civil Rights Act1 provides an opportunity to recover punitive as well as compensatory damages to plaintiff employees who bring sexual harassment suits. Sexual harassment cases can produce punitive damage awards in the millions of dollars-not simply because jurors want to reward employees who suffered adverse consequences, but also because some jurors may want to punish employers generally for their own employment experiences. Accordingly, attorneys representing employers face considerable challenges selecting a jury that will understand and appreciate the complexities of regulating workplace conduct and will appropriately limit employer liability when they find that sexual harassment actually occurs.

When defending a sexual harassment lawsuit, defense counsel must consider the requisite burden of proof at each phase of discovery. This is especially critical when framing responses to interrogatories or drafting questions to elicit deposition testimony supportive of the employer’s conduct. Similarly, employee and corporate witnesses must be prepared to offer testimony demonstrating compliance with the employer’s duty to maintain a work environment free of sexual harassment. Finally, defense counsel must work with expert and corporate witnesses to enable them to provide an accurate financial picture of the company.2 The duties and responsibilities of the decision-makers involved in the plaintiff’s employment, as well as those directing the corporation/company’s business, must be identified in ordered fashion so as to justify the CEO/ executive’s large salary or benefits package, which will be used as a comparator for any punitive damage award. If the discovery is thoughtfully crafted and thoroughly completed, defense counsel will have the prescriptive facts to use for jury selection.

A. Employer Liability Standards for Sexual Harassment

In the companion cases, Faragher v. City of Boca Raton3 and Burlington Industries, Inc. v. Ellerth,4 the Supreme Court held employers vicariously liable for employee sexual harassment by supervisors in the workplace. In that regard, the following standards apply:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action. . . .5

Accordingly, Faragher and Ellerth allowed that employers could affirmatively defend against hostile work environment claims. In that regard, an employer may avoid liability by establishing that the employer used reasonable care to prevent and correct any harassment (e.g., a sexual harassment policy containing a complaint procedure of which employees were aware), and the employee unreasonably failed to make a complaint under the policy or failed to avoid harm otherwise.

An employer may escape liability only when no “tangible employment action” occurred (e.g., discharge, demotion, or undesirable reassignment), and it proves by a preponderance of the evidence that it meets the required elements of the affirmative defense. In a situation where the employee suffered a tangible loss, however, the employer is vicariously liable and no affirmative defense will lie.

B. Standard for Establishing Punitive Damages

Punitive damages are intended to punish the defendant and to deter the defendant and others from committing similar acts in the future.6 A jury’s finding that the evidence supports a punitive damage award will be affirmed only if it is reasonable and supported by substantial evidence.7

In BMW of North America, Inc. v. Gore,8 and more recently State Farm Mutual Automobile Insurance Co. v. Campbell,9 the Supreme Court articulated three factors to determine whether a punitive damage award is reasonable. First, the court should consider the degree of reprehensibility of the defendant’s conduct. Second, the court will calculate the ratio of the punitive award to the actual harm inflicted on the plaintiff.10 While the Campbell court didn’t establish a precise mathematical formula to determine whether cash awards were constitutionally acceptable, punitive damages must bear a “reasonable relationship” to the compensatory damages awarded.11 Finally, the court will consider the difference between the punitive damage award and the civil (and criminal) penalties applicable to comparable misconduct.12 (The Campbell formulas for damage calculation are beyond the scope of this article).

II.

PUNITIVE DAMAGES IN EMPLOYMENT CASES

An employee may recover punitive damages against his or her employer if the employee demonstrates that the employer engaged in “discriminatory practices . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual.”13 In reviewing a punitive damage award in an employment case, the court will consider the three factors outlined above: the degree of reprehensibility of the employer’s actions, the disparity between the harm or potential harm suffered by the employee and the punitive damage award, and the differences between the remedy awarded and other civil penalties imposed in comparable cases.14 When analyzing these factors to determine the propriety of a punitive damage award, the court will give consideration as well to the egregious nature of the defendant’s conduct, its duration and frequency, and the defendant’s reaction after being informed of the misconduct.15

III.

JURY SELECTION IN SEXUAL HARASSMENT CASES

Given the strict elements of proof required under Faragher/Ellerth, as well as the Gore/Campbell standard for assessing punitive damages, it is imperative that defense counsel seek jurors who will understand the complicated dynamics of workplace conduct, the employer’s role in regulating that conduct, and an employer’s liability limits regarding the conduct of its agents. Accordingly, defense counsel should design voir dire questions so that responses will disclose whether a prospective juror can appreciate these issues. While defense counsel should make every effort to explore each prospective juror’s personal and employment background in order to uncover any latent predisposition, it is within the discretion of a federal trial judge to allow or refuse a given voir dire question.16 Consequently, counsel should frame questions carefully to expose only information that is relevant to the issues at hand.

IV.

SOCIAL AND ECONOMIC CHANGESAFFECTING JURY SELECTION IN 2004

A number of unique social changes and events can be expected to affect jury selection in 2004 and beyond. These include the entry of “Gen X and Y” jurors into the venire pool, the September 11, 2001 terrorist attacks, and multiple corporate financial disasters. These events merit careful consideration for their impact on jury selection in the sexual harassment and/or punitive damage case.

A. Gen X and Gen Y jurors

A “Gen X” juror was born between 1965 and 1977, and a “Gen Y” juror was born after 1977. While such persons will have become members of the venire panel only recently, they bring a different set of values and experiences that offer stark contrast to baby boomers or retirees. Gen X and Y jurors have been raised in a society characterized by higher divorce rates, more births out of wedlock, and absentee fathers. Having been taught and entertained with computers “from the cradle,” they possess enhanced computer and other technological skills. They will be aware of high health care costs, downsizing, and parental job changes that entail entry into different job markets as opposed merely to job transfer. They have watched virtual or reality-based television programs that heighten and glorify risk and deceit. Some, but not all, will have experienced Desert Storm, the Iran conflict, and the impact of military action. And all will have suffered the events of September 11 to some degree.

Certain character traits have attached to this segment of the jury pool. One of the more predominant traits is cynicism. This segment of the populations bears a heightened sense of cynicism towards government, lawyers, and statistical data. Furthermore, Gen X and Y’ers seek the stability that may have been deprived them due to parental divorce, followed by the introduction of transient adults into their lives who never became friend or parent. This longing for stability sometimes manifests itself by living at home longer or engaging in “group dates” more commonly than single dates. The increase in single-family households and teenage mothers also fuels the search for stability in relationships, friendships, and close-knit work environments. These jurors may be anti-divorce and inclined to start families at a later age, expecting to spend more time with their families than their parent(s) spent with them. There is also a greater tolerance of and acceptance for single-parent families.

Other identified characteristics include dependence on self and self-absorption. They believe less strongly that government or their employer(s) will provide for their long-term needs, particularly after Enron and the other mega-corporate bankruptcies. Another manifest trait is the desire to take control and responsibility for their own health care and career paths. Skeptical of big business, such individuals are more inclined to consider owning or operating a small business, viewing the economic downturn in wages as the impetus for owning and controlling their professional destinies. More are obtaining job skills that allow for ready job change, since they anticipate changing jobs and entering new careers with greater frequency.

On another plane, political leaders and election-related events during their formative years (e.g., Iran-Contra, the Clinton impeachment proceedings, and the 2000 presidential election) have diminished their sense of attachment to government leadership. Many feel their vote holds little consequence and may choose to express themselves politically via the internet rather than the voting booth. The recent criminal conviction of Martha Stewart, the familiar TV celebrity, increases mistrust of those with fame, fortune and perceived power. Combine the impact of a “survivor” mentality, which rewards deceit, with an increasingly skeptical attitude, and the concept of trust is lost.

These prospective jurors often are less liberal and more conservative as well. The backdrop for their “ideal” is formulated from television and computer game simulation. This generation is technologically savvy with an expectation that everyone else is also “in the know” about technology. They are accustomed to learning by participatory interaction with visually-assisted devices. When selecting a juror from this post-1977 era, attorneys should give consideration to the following information.

With respect to the work force, there appears to be greater appeal in emphasizing the interpersonal relationships of employees and customers in terms of getting along, employee/ employer respect, and being a team player. Notions of accountability and self-reliance also may have greater appeal to this group. Thus, it is necessary in a sexual harassment case to frame questions encompassing the concept of employee knowledge, responsibility, and a duty to promptly provide notice of the alleged harassment, combined with a duty to follow up with the employer to make sure the notice was received and investigated. Likewise, the company or employer which has been proactive in drafting policies and implementing them by investigating and disciplining harassers when warranted, can appeal to these jurors who value the sense of self- reliance and accountability. If the company or business portrays the work force, the product manufactured or sold, or the service provided as a means to fulfill a family or personal need, these jurors might view the company as pro-family and properson rather than “just a business.” These jurors’ core values may align more closely with this person-oriented defendant during jury selection.17

B. Impact of September 11, 2001 Terrorist Attacks

The United States was traumatized by the terrorist attacks in New York City, Pennsylvania, and Washington, D.C., on September 11, 2001. While some time for adjustment has passed, no one is able to estimate the gravity of the emotional, financial, and societal impacts surrounding these horrific events. In light of the multiple tragedies resulting in injury, loss of life and lost security, and continued inquiry into what the federal government knew and could have done to prevent the attacks, jurors may view the plaintiff and the defendant (or their attorneys) differently than before the attacks. Historically, United States citizens maintained a sense of security within their borders; that has since been disrupted. Not only do many jurors believe the borders are no longer safe, there is also a diminished sense of security regarding economic stability. These insecurities increase as citizens question whether historically more secure corporations and insurance companies will have sufficient monies available should they need to rely upon their policies or investments. Questions also abound about the continued provision of government services as many individuals face significant cutbacks in state and federally funded programs. The wake-up call delivered on September 11 may be a cogent topic to explore with each juror.

There is no doubt that the September 11 attacks shook the economy. The prosperity of the 90’s, though arguably already on the downturn, came to a crashing halt. This situation led to decreased consumer and investor spending, as well as cutbacks in production and employment. According to recent Labor Department statistics, the unemployment rate as of this writing is at 5.6%, which presents a decrease since the second quarter of 2001.18 However, these statistics are misleading since the labor force actually shrunk. The numbers indicate that some people are so discouraged they have abandoned hope and see no incentive for locating a job, at least temporarily. A Federal Reserve Open Market Committee press release, dated October 2, 2001, stated that “[t]he terrorist attacks . . . significantly heightened uncertainty in an economy that was already weak. Business and household spending as a consequence [were] further damped.”19 What the press release does not say is that spirits also were dampened. Along with many lost jobs, citizens also lost their sense of national security as well as a desire to live and work in large cities. Thus, the events of September 11 not only attacked pocketbooks; they attacked psyches as well. One reaction to the attacks has been relocation from urban to smaller, tight-knit communities. These recent moves and the reasons for relocation must be explored.

Mindful of such attitudinal changes, attorneys must be prepared to inquire about the impact of September 11 events on the prospective juror, on his or her family, and on the workplace. In addition, it will be necessary to determine whether these concerns will be adverse to the company or corporation named as a defendant in a sexual harassment lawsuit (e.g., should employers be doing more to protect their workers?).

C. Corporate Financial Mismanagement and Potential juror Backlash

On December 2, 2001, Enron Corporation filed for Chapter 11 bankruptcy when its stock plummeted, resulting in hundreds of millions of lost dollars to investors and Enron employees.20 Enron’s financial disasters were followed by other corporate disclosures of mismanagement, including companies such as WorldCom and Global Crossing. While many corporations file for bankruptcy, it is especially disconcerting when not one, but several Fortune 500 giants implode. To make matters worse, congressional investigations uncovered evidence that Enron used questionable accounting practices and encouraged its employees to hold the company’s over-valued stock in their pension plans while top executives liquidated their options before jumping ship.21 Such selfish behavior does not simply impact Enron employees, it also breeds public distrust of large corporations and employers in general. Can anyone now say with confidence that an employer will not hang them and their retirement accounts out to dry, especially given the current state of the economy? If the general public was leery of large corporations before these scandals, what sentiment predominates now? Certainly, it is not confidence or trust.

While the government is investigating the business decisions of many corporate giants, the extent of the media coverage and the number of Enron, Arthur Andersen, and other corporate representatives who already have taken the 5th Amendment during investigative proceedings has fertilized seeds of mistrust among many in the general population. In addition, the extraordinary loss of money suffered by hundreds of thousands of employees whose retirement funds have been liquidated may hit home with many of the individuals who comprise a given jury pool. It can be expected that parents, siblings, grandparents, neighbors, and co-workers have been affected by financial losses. Given the economic consequences of the corporate financial mismanagement, prospective members of the jury pool who once were sympathetic to business or management may have developed reservations about corporate management, corporate trust, corporate values, and corporate integrity. Thus, specific inquiries should be directed to determine whether prospective jurors have information about corporate mismanagement, have followed any government investigation, or have suffered direct impact either individually or through family, friends or business associates. It is also wise to ascertain whether their own personal investments or retirement accounts held stock in these former corporate giants and were diminished or gutted entirely. In a suit where punitive damages are possible, it is particularly important to explore the attitudes of prospective jurors as they relate to corporate decision-making in general. In light of Enron-like failures, it is critical to determine the jurors’ propensity to “punish” the specific defendants in lieu of their inability to punish other offending executives.

V.

RECOMMENDATIONS FOR JURY SELECTION

A number of articles have been written about the general principles of jury selection, the mindset of the prospective juror, and the conduct of plaintiff and defense counsel during the jury selection process. Judge James W. Mehaffy offers an insightful guide for jury selection.22 He notes that:

The art of jury selection is not, as some think, in learning the visceral decision-making skills. Those skills an individual either possesses or doesn’t. The art of jury selection is, rather, in achieving a balance between the rational and the intuitive processes. . . . The central and salient fact is that jury selection should be an information gathering process.23

In outlining his recommendations for jury selection, Judge Mehaffy identified six generic areas that are critical to the outcome. His recommendations include:

(1) “Don’t Argue your case.”24

(2) “Get Complete Employment Information.”25 This includes not only the jurors’ place of employment but also the jurors’ duties (e.g., whether they are hourly or salaried employees, whether they have supervisory responsibilities, and their specific day-to-day tasks). If the juror is retired, obtain information about prior job responsibilities, not only for the juror but also the juror’s spouse or significant other. Information regarding past employment should be elicited regarding each juror, including his/her spouse or other family members.

(3) “Ask Direct Questions about Attitudes.”26 judge Mehaffy encourages lawyers to reassure the jury that it is acceptable for each of the jurors to have an opinion and that the attorney is interested in hearing both favorable and adverse opinions.

(4) Ask about memberships in associations.27

(5) When phrasing questions, convey open-mindedness and an interest in what the potential juror has to say.28

(6) Ask the same relevant questions of each potential juror.29 As to this recommendation, Judge Mehaffy suggests including the following inquiry: “Ask, ‘Mrs. Jones, how do you feel about your prior jury service?’ or better yet, ‘Mrs. Jones, how do you feel about us lawyers?’ You’re guaranteed to get at least one laugh from that one.”30

Trial lawyers, trial consultants, and trial psychologists who have gathered data specifically applicable to sexual harassment litigation through focus groups, mock juries, and actual jury selection have supplemented these recommendation. In the ALI-ABA Course of Study Materials entitled, Choosing the jury: Do s and Don ‘tx for Voir Dire and Jury Selection,31 prepared by Daniel R. Gallipeau, Ph.D., the author developed five categories into which a particularly “punitive” juror might belong. These are relevant as well to employment litigation. Dr. Gallipeau enumerates the categories as follows:

1. Occupational Trauma.32 Identify whether the prospective juror has been a victim of any trauma within the workforce, including termination of employment. Such trauma can extend to family members or friends, fear or threats of being terminated, or fear or threats of being reassigned or transferred to another position?33 Important juror-specific information would include employment status and length of time in a particular job in the particular city.34 In light of the economic downturn since September 11, the occupational trauma category probably admits of many members. They will include a greater number of individuals who have held steady employment for five, ten or fifteen years without fear of layoff or termination, but whose prospects now may include loss of job or demotion.

2. Life Trauma.35 Dr. Gallipeau recommends inquiring about jurors’ experiences with such events as death, chronic illness, divorce or separation within the immediate family36 (and perhaps the extended family). Collegial losses also have been suffered by those affiliated with firefighters, police officers, health care workers, and other service-oriented groups who share a greater sense of connectedness with their professional colleagues. In addition, military deployment to the Middle East and other areas in order to combat terrorism has resulted in deaths of U.S. military personnel and private citizens (such as reporter Daniel Pearl). Thus, it is important to inquire about any significant loss of friends or family members who are serving in the military, whether stationed stateside or abroad. There may be others who are on notice that they will be called to active duty and placed at increased risk of death.

Should any of the jurors disclose that they have experienced a traumatic life event, it is pertinent to follow up with that juror to determine whether the “loss” identified would in any way impact their view of the loss claimed by plaintiff. Moreover, defense counsel should grasp the opportunity to introduce the similarity of such a loss to the supervisor or manager. If wrongfully accused or improperly disciplined because of the plaintiff’s allegation, comparable losses could include loss of family time, loss of personal time and loss of personal integrity. Humanizing the defendant managers or co-employees at this opportunity is not an overreaching extension to play upon the prospective juror’s loss; rather, it is a legitimate balancing tactic to demonstrate that adverse impact following an unfounded claim of sexual harassment falls equally upon the defendant business owner, co-employee or manager.

3. Generalized Hostility.1″1 These individuals feel that “life is passing them by,” or that “they played by the rules” and it is not paying off.38 The September 11 attacks and multiple acts of corporate and director misconduct have enlarged this class of prospective jurors. The class may contain a number of individuals whose financial earnings and retirement savings have evaporated through no fault of their own.

4. Control over One ‘s Destiny?’ Such potential jurors are “punitive” and feel that they have little control over their lives; they also prefer government regulation.40 These are individuals who feel that they cannot protect themselves and that punishment is the only viable means of modifying corporate behavior.41 Individuals who might fall into this category include those who qualify their answers or their place in life as being directed “by luck or by fate.” These individuals may have fairly scattered educational or job histories or career path changes.

5. High Empathy?2 Finally, those jurors described as having “high empathy” could fall within the category of persons unfavorable to the defendant.43 Prospective jurors who come from professional backgrounds or hold positions that require a fair amount of compassion and empathy, such as school teachers, nurses, social workers, mental health providers, or professionals within the humanities curriculum, as well as individuals affiliated with volunteer or religious institutions that serve the disadvantaged, may be unfavorable to the defendant. This type of juror may be more inclined to empathize with the plaintiff and her losses and may be willing to provide the plaintiff with an inordinately large recovery to redress that loss, especially since the money will be paid by someone else.

A. Overview of juror Profiles

The selection of a jury in a sexual harassment case or an employment discrimination case is distinct from other types of litigation because it provides the potential juror with an opportunity to second-guess the decision-making process that adversely affected the plaintiff. Unlike jurors in a personal injury litigation resulting from a car accident or a defective product, sexual harassment jurors have greater day-to-day familiarity with the work environment, which forms the basis for their perceptions, attitudes, and biases. Thus, jurors in this situation are more likely to comfortably “stand in the shoes” of the plaintiff, than to have familiarity with the supervisory role of a manager, human resources director, or other corporate decision-maker. Statistically, the percentage of prospective jurors within the jury pool that participate in management-level decisions will be far smaller than the number of prospective jurors who are from the “employee” pool.44 In that vein, the following general guidelines derive from a number of articles and other professional experience. The chart identifies the particular author and reflects the author’s views about which jurors may be favorably or unfavorably disposed to the defendant employer’s case. In some cases, a characteristic may be both favorable and unfavorable, depending upon the facts in dispute. Material extracted from selected articles also was included to prepare this chart.45

B. jury Selection for Punitive Damage case

Depending on the venue in which the employment matter is tried, defense counsel may be conducting jury selection to choose a jury that will hear all of the issues in the case or hear the punitive damage aspect of the case in a trial that bifurcates liability and damages. As noted at the outset, three purposes are served by awards of punitive damages, but the jury selection should be governed by the theme of the defense case. The nature of any inquiries will be influenced by the facts at issue in the case. Punitive damage arguments by plaintiff’s counsel often include comparisons that emphasize the disparity between a single employee and a large corporation, invoking the “David and Goliath” scenario. Prior to selecting a jury that will hear the punitive damage case, it is pertinent to assess the jury’s philosophy about the operation of small and large businesses. Make every attempt to humanize the corporation and to characterize the defendant by using the names and titles of corporate managers, rather than Grafting the inquiry to focus only on the business entity. Little information has been published on jury selection for an employment case in which the jury will decide a claim of punitive damages. In any event, consider exploring the following areas when selecting jurors.

A primary goal in this voir dire setting is to learn about the juror’s knowledge and/or level of experience in the business world. Very often, plaintiff’s counsel will offer information about the net profits of a business or the annual salaries paid to a chief executive or member of the board of directors, which may include sums in the hundreds of thousands to millions of dollars. Plaintiff’s counsel also may refer to statistics such as the volume of sales in a particular year or over the numerous years plaintiff worked at the business, attempting to suggest that the company is so successful that the payment of punitive damages poses no threat. The defendant will need jurors who are sufficiently sophisticated to understand that salary and sales data do not adequately reflect the profitability of a corporation. Jurors must understand that the volume of manufactured goods and product sales do not end the calculation to determine corporate liquidity. jurors should be able to understand financial statements, analyze the economic testimony presented by plaintiff and defendant and, equally important, be willing to examine the specific consequences to the individual defendant, apart from the larger economic picture that affects the corporation.

It is also important to explore individual juror attitudes about the reality that marks the American civil justice system: money provides the only means of redress and punishment. While jurors may be instructed that awarding punitive damages is one means of sending a message to a corporation that has acted inappropriately, that award is not a license to deplete a corporate treasury. Therefore, it will be necessary to assess each juror’s level of sophistication and willingness to separate the conduct of the harassing employee or supervisor from the conduct of all other unrelated decision-makers who oversee manufacturing, sales, or advertising for the company. In addition, assess the juror’s ability or inability to view the behavior of the alleged wrongdoing as an isolated incident or to view the wrongdoer as a self-serving, misguided individual separate from the other corporate employees. Ask each of the employed prospective jurors to describe the nature of the business at which they are employed, the number of employees, their understanding of the decision-making system, the availability of any reporting structure for sexual harassment or perceived discrimination, and their company’s response to those types of claims.

In addition, have prospective jurors explain their understanding of how their existing employers calculate profitability or loss, how the proceeds of the business are distributed, and the frequency with which employees receive raises, bonuses, stock options, or other rewards for a job well done. Following those questions, inquire whether the prospective juror was ever denied a bonus, promotion, or raise to which the juror felt entitled and the reasons for such denial. Any juror who has encountered that circumstance should describe his or her emotional reaction, the length of time since the benefit was denied, and any actions taken to redress the denial of benefits. Each of these inquiries will assist defense counsel to identify those jurors who may believe that management is overpaid and that employees are underpaid. Defense counsel can determine as well whether any jurors viewed themselves as victims of employer injustice. Finally, inquire whether serving on this jury would afford the opportunity to seek redress against a surrogate employer.

If allowed, a short summary of the facts should be presented to assist the jury pool in appreciating the limited number of individuals who were involved, the length of time that the alleged harassment existed, and the basis for any corporate decision. The jury should learn about the people who were involved at each step of the way. Personalizing details, such as whether the defendant employee decision-maker or alleged harasser is married, or has children to raise or parents to support, should be incorporated within the questions as well. Ask the jurors about the importance of family values and the need for wage earners to support their families. Determine whether the jurors believe that each of the decision-makers in this case should be entitled to hold those same values and meet the same family and financial obligations. If plaintiff will be permitted to introduce evidence of large executive salaries, be certain to mention the employment obligations and family needs that support those salaries. The defendant’s corporate image also should be explored with each of the prospective jurors. Prospective jurors frequently identify corporations with successful advertising campaigns, such as Coca Cola, to exemplify those companies with a positive corporate image. Likewise, prospective jurors should be asked to identify any corporations to which they attach a negative corporate image and the reasons for that perception. If the prospective jurors are familiar with the defendant corporation, ask about any opinion they have formed about the defendant’s corporate image.

The magnitude of any injuries suffered by the employee may have a similar impact on jury selection. If allowed, defense counsel should advise the jury about the types of damages available to the plaintiff and the reasons for punitive damage awards. Counsel also should determine the basis, in the jurors’ view, for making an award of punitive damages. If the plaintiff has failed to mitigate his or her damages, jurors should be asked questions about an employee’s duty to mitigate damages, their understanding of the job market, and what steps reasonably might be necessary to mitigate any damages. In addition, if the employee is claiming some type of severe emotional distress or inability to work because of a post-traumatic stress reaction owing to the sexual harassment, the juror’s familiarity with those types of damages or personal experiences with those conditions must be discussed. Jurors will intuitively compare the plaintiff’s emotional distress with the emotional distress experienced in every-day life, but they can redress with an award of punitive damages only that which is extraordinary.

Despite the narrow questions invoked by the verdict, plaintiff’s counsel will attempt to minimize the individuality of corporate actors and maximize the enormity of the corporation. In this regard, prospective jurors should be made aware that punitive damages may not be necessary at all to correct the behavior of the alleged harasser. Ask potential jurors if it would make a difference if the alleged harasser were no longer employed by the corporation, or were disciplined or deceased, or had apologized to the plaintiff and taken additional training to become better aware of the law. Questions of a similar nature about the supervisor, manager, or human resources director who failed to respond to plaintiff’s complaint or failed to stop the harassing conduct also should be asked.

Jurors often consider prior conduct as evidence of corporate tolerance for wrongful behavior. If the facts indicate that prior complaints of sexual misconduct or sexual harassment were lodged against the same harasser, acknowledge the existence of the prior complaints and secure each juror’s perspective on whether prior complaints served to put the company on notice or whether plaintiff’s situation suggests the company’s failure to address the prior complaints. Even if the prior complaints of sexual harassment related to individuals who worked in different departments or were unrelated to this harasser, the jury’s attitudes about the mere existence of complaints within the institution still must be evaluated. Any intervening actions taken after receipt of prior complaints, including education, adopted policies, harasser discipline, or change of supervisor, might be important remediation. As such, it will affect the jury’s impression about whether the corporation was sensitive to the complaints and responded to them in a timely fashion.

VI.

CONCLUSION

While many tools and consultants are available to assist defense counsel in selecting a jury to decide a sexual harassment claim, three key principles remain. First, the attorney should trust his or her instincts. Secondly, observe the age-old adage that bad facts make bad law. Finally, remember that the defense attorney is the most visible corporate representative for these proceedings. His or her credibility during jury selection will be one of the most powerful assets in getting the jury to return a verdict in the client’s favor.

[dagger] This article was submitted on behalf of the FDCC Employment Litigation and Civil Rights Section. The author expresses her gratitude to law librarian Barbara Arnett for her research assistance.

1 42 U.S.C. § 1981 (2000).

2 See Patrick A. Gaughan, The True Economic Effects of Punitive Damages, FOR THE DEF., Oct. 2001, at 16, 49.

3 524 U.S. 775 (1998).

4 524 U.S. 742 (1998).

5 Burlington, 524 U.S. at 765 (citation omitted); Faragher, 524 U.S. at 807-08 (citation omitted).

6 Manual of Model Civil Instructions for the Ninth Circuit, Instruction No. 7.5 (1997).

7 Lambert v. Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999) (en bane).

8 517 U.S. 559 (1996).

9 123 S. Ct. 1513 (2003).

10 Gore, 517 U.S. at 580.

11 Id.

12 Id. at 583.

13 42 U.S.C. § 1981a(b)(1).

14 Gore, 517 U.S. at 575.

15 See Swinton v. Potomac Corp., 270 F.3d 794, 818 (9th Cir. 2001) (highly offensive language directed at plaintiff, combined with employer’s failure to combat harassment, “constitute[d] highly reprehensible conduct justifying a significant punitive damages award”).

16 Donald Paul Duffala, Annotation, Propriety and Prejudicial Effect of Federal Court’s Refusal on Voir Dire in Civil Action to Ask or Permit Questions Submitted by Counsel, 72 A.L.R. FED. 638 (1985).

17 Other helpful comments on the Gen X and Gen Y juror are found in Elizabeth Foley & Adrienne LeFevre, Understanding Generation X, TRIM, MAGAZINE, June 2000. See also Mui Nelson, Here Come the Kids: Gen Y Invades the Workplace, N. Y TIMES, Feb. 4, 2001, § 9, at 1 (general information on Gen X and Y employees and their impact on the work force). And see Elena Romero, Trend Behavior of Generation X and Y Explored at Conference; Groups Exhibit Differences in Altitude, Behavior Based on Upbringing, According to Study, DAILY RECORD NEWS, Apr. 9, 2001, at 1B; Karen Gates & Kimia Rahimi, Algebra Lessons for Older Workers; Baby-Boomers, Who are Used to Paying Their Dues, May Resent the Forthright Attitudes of Younger Employees, FINANCIAL TIMES, Nov. 19, 2001, at 4; July Welch, In Search of Spoilt Geeky Slackers; Wear Your Gen Xor Y Badge with Pride, THE GUARDIAN, May 8, 1999, at 3; Shelley Reese, The New Wave of Gen X Workers; Generation X, 17 BUSINESS & HEALTH 19 (1999); C. Alexander, Understanding Generational Differences Helps You Manage a Multi-Age Workforce, DIGITAL EDGE (July 2001), available at http://www.digitaledge.org/monthly/2001_07/gengap1.html.

18 Seasonally Adjusted Unemployment Rale, Feb. 2004, U.S. Dept. of Labor, Bureau of Labor Statistics, available at www.bls.gov/cps.

19 Fed. Res. Open Market Press Release, October 2, 2001.

20 Richard A. Oppell, Jr. & Andrew Ross Sorkin, Enron Corp. Files Largest U.S. Claim for Bankruptcy, N.Y. TIMES, Dec. 3, 2001, at A1.

21 Richard A. Oppell, Jr., Labor Dept. Questions Enron’s Truthfulness, N. Y. TIMES, Apr. 19, 2002, at C1.

22 James W. Mehaffy, A Few Tips on Jury Selection: A View from the Bench, 63 TEX. B.J. 878 (2000).

23 Id. at 879.

2″ Id.

25 Id.

26 Id.

27 Id.

28 Id. at 880.

29 Id.

30 Id. at 880.

31 Daniel R. Gallipeau, Choosing the Jury: Do’s and Don’t’s for Voir Dire and Jury Selection, ADVANCED EMPLOYMENT LAW AND LITIGATION (Dec. 5, 1996), WL SB31 ALI-ABA 333.

32 Id. at 336.

33 Id.

34 Id.

35 Id.

36 Id.

37 Id. at 337.

38 Id.

39 Id.

40 Id.

41 Id.

42 Id.

43 Id.

44 Albert H. Parnell, 10 Practical Thoughts on Defending Punitive Damages Claims, Seminar on Damages, Defense Research Institute, Inc., Las Vegas, NV, March 26-27, 1998.

45 M. Frances Ryan, Occupations Count in Job Bias Trials, NAT’L. L.J., Oct. 1, 2001, at 15; Michael Higgins, Ask and Ye Shall Predict: Good Questions Beat Stereotypes When Choosing Jurors, A.B.A. J., July 1998, at 16; Jeffrey R. Bayll, Part IH. The jury: Identifying Key Juror Attitudes in Voir Dire, DEFENSE PRACTICE NOTEBOOK. Vol. 1996. No. 1.

Kim Baker is a member of Williams, Kastner & Gibbs PLLC in Seattle, Washington. She defends employment, product liability and Healthcare litigation. She is a member of the Defense Research Institute and the Federation of Defense and Corporate Counsel, as well as various state employment and human resource organizations. She is currently the chair of the FDCC Employment Section.

Copyright Federation of Defense & Corporate Counsel, Inc. Winter 2004

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