What matters more – jurors’ discrimination experiences or their attitudes? Or are both critical? Imagine you are in jury selection and have a juror who directly experienced workplace discrimination. You have another juror who has witnessed others’ experience with workplace discrimination. And yet another who harbors the belief that gender discrimination is ingrained in today’s workplace. Clearly, it helps to know your case’s risk factors going into settlement or trial. To that end, Litigation Insights’ national survey of mock jurors’ experiences in the workplace surrounding discrimination addresses jurors’ familiarity with gender and age bias.
Women’s Discrimination Experience Matters
Our poll suggests that jurors may be more sympathetic to female plaintiffs. Almost half of jurors (49%) agree or strongly agree that women often reach a “glass ceiling” at work that makes it almost impossible for them to advance into upper management, as shown in the graph below.
A recent Pew Research Center survey of women’s and men’s experiences with discrimination and attitudes about gender disparity at work was quite telling about the effect prior experiences with discrimination had on gender attitudes. Women who had experienced discrimination at work more strongly believed that the gender pay gap is due to differential treatment of women than of men, it is easier for men to get the top jobs, men earn more for the same job than women, and society favors men over women as compared to men’s beliefs or their female counterparts who had not experienced discrimination. Direct experience with discrimination can give female jurors an insider’s look at corporate hierarchy, human resources, and a changed view on the subtle ways that discrimination can affect a woman’s career trajectory.
Age Breeds Wisdom, But Also Breeds Bias at Work
When it comes to age discrimination, juror opinions are mixed. Again, direct experience with age discrimination may come into play with juror attitudes. Specifically, older workers are more likely than younger workers to agree that employers discriminate against people because of their age. For older workers, the most common reported source of bias is in the hiring and firing process, as they feel overlooked in the hiring decisions, but targeted in firing decisions.
When it comes down to it, jurors’ overall experiences with unemployment were extensive. Our findings indicate that nearly half (43%) of jurors have experienced unemployment at some point in their lives, with 36% of those respondents having been out of work for one year or more. In fact, 26% had been laid off from their job once, and 19% experienced a layoff more than once. Likely related to the recent recession, which was troubling for both businesses and employees alike, 29% of the layoffs were due to companies going out of business. The high volume of people who have experienced unemployment may be more sympathetic to a plaintiff who is out of work, whether or not they agree with the discrimination claim.
However, a majority of jurors (56%) across all age categories agree that one of the biggest hurdles for unemployed workers is their age, because they believe companies are biased against older workers. Indeed, jurors over age 50 were more inclined to agree than those under age 50. In fact, overall 44% of all respondents disagreed with the statement, “Companies place greater value on older employees’ tenure and experience than on younger hires.” But when mock jurors were divided into an over-50 and under-50 age group, that number increased to 51% disagreement among jurors over age 50, as shown in the chart below.
Instead of age creating value for older workers, 43% of jurors across all age groups believed that older, experienced workers are the first targets of layoffs. Again, that number increased to 50% among jurors over 50, who agreed that they would be among the first targeted for layoffs.
Using Graphics to Clarify Your Case and Combat Bias
When it comes to jurors with predispositions that can threaten your case, juror deselection is a crucial strategic opportunity; however, to limit additional risk and present your best case, your trial visuals need to be as strong and as clear as possible. After all, gaps in clarity are often paved over with assumption and personal experience.
Unfortunately, clarity tends to be at odds with the very nature of an employment case. To establish a convincing path to rightful termination, there is no shortage of minute events to convey. For instance, we traditionally try to limit timeline graphics to between 12 and 15 data points (events) so as not to overwhelm our audience; but an employment case can include significantly more grievances than that, dispersed over a long period of time. So, the key is to adapt your graphics accordingly to present all that data in the best way possible.
Take this example: In the graphic above, 64 total grievances needed to be rep¬resented. But we also wanted to display them in a way that called out how dramatically the grievances intensified after the plaintiffs had filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC).
As you can see, we modified a standard timeline to accomplish our goals. Large-font numbers and rising red bars indicated the sharp increase in grievances, and made equally conspicuous the sparseness of such grievances before the EEOC filing. The bar graph format allowed us to present the large amount of data in a way that concisely and visually demonstrated our points. And, distinct arrows and a contrasting color (gold) highlighted the exact date of the EEOC charge, so jurors could see for themselves the suspicious turning point.
Another useful way to handle large data sets while telling a compelling story is to build up a timeline step-by-step for jurors, cutting or animating from each new time¬line event to its corresponding piece of evidence. If you are trying to argue that a worker’s poor performance led to his or her termination, you can match each notable fault, mistake, detrimental effect, warning or company response one-by-one to an email or document callout. With these methods, what feels like an overwhelming amount of data can be transformed into a linear story that jurors can appreciate.
Although jurors’ experiences with discrimination in the workplace are ever-changing because of evolving social and employment policies, our recent survey confirms the continued patterns of risk factors over the years in employment discrimination litigation. Jurors with direct experience with discrimination may view a plaintiff’s claims very differently than those who have never experienced bias. For gender and age, our results support the similarity leniency effect, that those jurors with substantial similarity to the plaintiff are more likely to be predisposed toward the plaintiff’s case. These attitudes are often firmly held and come into the courtroom with jurors, coloring the way they will view the case through those beliefs. This reality highlights the importance of identifying jurors in voir dire for deselection who whole such strong convictions, before those jurors create a risk for your case in the jury room. It also demonstrates the need for trial graphics that are clear as possible, and tailored in a way that promotes understanding and mitigates any potential remaining bias.
This article originally appeared in the Fall/Winter 2016 US Law Magazine on USLAW Network.
By: Jill Leibold, Ph.D. – Director – Jury Research,
Alyssa Tedder-King, M.S. – Consultant,
and Adam Bloomberg – Managing Director – Visual Communications
Pew Research Center survey, December 10, 2013. Gender Discrimination and Attitudes on Key Gender Issues. http://www.pewsocialtrends.org/2013/12/11/on-pay-gap-millennial-women-near-parity-for-now/sdt-gender-and-work-12-2013-4-05/
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