Trial considerations for a case of employment discrimination (without sexual harassment) causing severe mental and emotional injury
In employment race discrimination cases not involving sex harassment, some plaintiffs’ attorneys have observed a tendency for jurors to vote according to their political philosophy. That is, when racial discrimination is the issue, liberal and Democratic jurors will tend to sympathize more for the plaintiff employee, while conservative and Republican jurors will tend to sympathize more for the defendant employer. Of course, these tendencies do not apply to all jurors or to all discrimination lawsuits. The majority of people believe that racial discrimination is wrong. Therefore, a competent plaintiff’s discrimination attorney must probe beyond political leanings when deciding whether to accept or challenge any particular juror. Each juror has different life experiences and beliefs that may trump political affiliation when it comes to a particular case of racial discrimination.
Most age discrimination cases present a basic philosophical issue; that is, whether companies owe a duty to older employees who may be less competent and enthusiastic than younger employees. As technology rapidly moves forward, many assume that it is difficult for older employees to keep up. Is that a reason to fire them in favor of younger, presumably more competent employees? Some jurors will believe that a company should maintain its loyalty to older employees even if they are less productive, and other jurors will believe that the cost of doing business requires finding the most productive person for the job. Again, juror attitudes will tend to break down along liberal versus conservative lines, with liberals more likely to favor the employee and conservatives more likely to favor the employer.
However, the exceptions to these tendencies are plentiful. For example, certain liberal but younger jurors may be more sympathetic to employers that want more technical expertise to keep their businesses efficient and competitive. And certain conservative but older jurors may be more sympathetic to aging employees, who have had difficulty keeping up with the job market. A diligent and experienced plaintiff’s employment discrimination lawyer must consider numerous factors when deciding whether to accept or challenge any specific juror in an age discrimination case.
Religious discrimination can be a subtle subject. Because religious discrimination can be carefully concealed, sorting out who will or will not be a good juror for a particular side can be difficult. Most people are against the idea of discrimination based upon religion. Yet there are many historical and contemporary examples in our society of intolerance towards religious differences.
What is most challenging for the religious discrimination plaintiff’s attorney 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 may be helpful, but it is highly unlikely that somebody will answer a questionnaire by stating “I hate the plaintiff’s religious group.” Instead of overtly asking whether a juror discriminates, the plaintiff’s attorney can ask about the juror’s attitude toward the religion of the plaintiff, what the juror’s experience is with that religion, and whether the juror has associated with or avoided associating with members of the religion.
Non-sexual harassment gender discrimination
In gender discrimination cases (not involving sexual harassment), it is often assumed that more liberal jurors will vote for plaintiff and more conservative jurors will vote for 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. But a skilled plaintiff’s trial attorney must explore more than a juror’s political leanings. There is probably no way to generalize who will or will not be a good juror in a gender discrimination case. Basically, the plaintiff’s attorney wants to look at the way that a particular juror has lived, the juror’s relationship with his or her spouse, and the relationship of the juror’s parents to one another. Do they treat people of both sexes as equals?
Use of focus groups
Focus groups and jury consultants can be very valuable tools that your plaintiff’s employment attorney can use when preparing for jury selection in a discrimination case.
Carefully watching the deliberations of a mock jury can be of particular importance. How will pro-business jurors defend the acts of the corporation in light of plaintiff’s evidence of discrimination? Who will be plaintiff’s jurors who can stand up to the 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 used by the mock jurors in deliberation will allow your plaintiff’s attorney to plan on the evidence and testimony to introduce at the real trial.
Use of jury questionnaires
Since almost no one will admit in open court to bias based upon race, religion, age, or sex, jury questionnaires are essential in employment discrimination cases. However, it is rare that a questionnaire response will reveal an admitted bias against a particular segment of society. Useful non-demographic information which a plaintiff’s trial attorney can obtain will often 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, almost everyone will have had bad experiences with older people and people of either gender. Therefore, in age or sex discrimination cases, a more useful approach on a questionnaire may be to obtain information which brings out how the juror treats people of the plaintiff’s gender or age.
Many experienced plaintiffs’ attorneys begin the opening statement in an employment discrimination case with a theme. One clear and effective theme is that we as a society have determined that it is not right for an employer to make employment decisions based upon a person’s race, religion, age or gender. Defendant has broken the rules by discriminating against plaintiff, and the jurors will be in charge of correcting the wrong committed by defendant.
In opening statement in your employment discrimination lawsuit, your plaintiff’s attorney should discuss why we have rules against discrimination and how defendant broke those rules. The focus should be directed away from you and should be placed on the immoral, unjust behavior of 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.
Nobody likes to be discriminated against. Even people in classes not protected by the law, like white people, young people and males, do not like to be discriminated against and treated unfairly. Your employment lawyer’s opening statement should emphasize the discriminatory nature and the injustice of defendant’s misconduct.
If the employer ratified or ignored the misconduct of a particularly biased supervisor, your attorney should draw attention to that fact. Everybody believes that everyone deserves an equal shot at success. But your lawyer should stress the fact that you were held down, not because of your performance, but rather because of your gender, race, age or religion. That is not fair, and the evidence will show that you were treated unfairly and illegally.
As in opening statement, the emphasis of closing argument should be on the misconduct of defendant. The closing argument should help the jurors in assessing the key evidence and following the trail of the defendant’s illegal discriminatory acts.
Closing argument is a rare opportunity for your plaintiff’s employment attorney to talk about the founders of our country and our Constitution without appearing overly dramatic. The laws that we as a society made outlawing discrimination really are among 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 could 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 the plaintiff’s lawyer can focus the closing argument 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 gender 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 employer never knew about, then it is probably appropriate for plaintiff’s attorney to point out that defendant is acting like an ostrich. Defendant has a legal duty to make sure that discrimination does not happen. It is not enough merely to issue policies that seek to prevent discrimination. 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.
After your plaintiff’s attorney delivers a closing argument, then the defense attorney gets to make a closing argument. In most employment discrimination lawsuits, the defense argument will be that discrimination did not exist, that it was not ratified, that plaintiff was a poor performer, and that plaintiff was not promoted or was fired based on poor performance or due to a reduction in force, and not due to discrimination.
In most trials, after the defense finishes its closing argument, your attorney may present what is called a rebuttal argument. If the jurors do not entirely believe the defense case, then your attorney has the chance to make a 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. Hopefully, after seeing all the evidence, the jurors have realized the correctness of your position and the unjustness of the situation. Rebuttal argument is an opportunity for your attorney to motivate the jurors to do something to correct the injustice.
Your employment discrimination attorney can explain to the jurors their role in society. They have a rare opportunity to correct an injustice and right a wrong. It is not necessary in rebuttal to answer each and every point that the defendant’s lawyer raised during the defense 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 defendant by giving you your job back or saying it is sorry. The only way it can correct its discriminatory conduct is through a monetary award.
The following is a sample rebuttal argument that a plaintiff’s attorney might present in the appropriate case:
“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 plaintiff down and attempt to send a message to plaintiff and other employees that the corporation 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, which attacked plaintiff and plaintiff’s 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 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 we 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 cannot ask the corporation to have a heart, but 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.”
Closing argument is one of the most important parts of the trial of an employment discrimination lawsuit. The most knowledgeable and experienced plaintiffs’ employment attorneys will take great care to prepare a compelling closing argument and rebuttal argument that focus on the defendant’s misconduct and the jury’s opportunity to correct the injustice.