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Article: December 2019: Trial Practice Update

Business Litigation Reports

Issues Impacting Jury Selection in Sexual Harassment Cases

Workplace sex discrimination and harassment claims present evolving challenges in the #MeToo era.  The jurors who will be selected to assess the proof at trial are unlikely to view it with fresh eyes given the widespread coverage of these issues in the mainstream media.  The #MeToo Movement has brought more cases into the public discourse, emphasizing the extent of such misconduct across all industries and at every level of a company, as well as the failure of some institutions to investigate and respond appropriately to such complaints. 

            Studies show that most individuals have had either personal experience with discrimination, harassment, or sexual misconduct or know someone who has had such personal experience.  Generally speaking, plaintiffs asserting sexual harassment or discrimination claims tend to benefit from jurors with related experience, because such jurors are likely be empathetic to the allegations, the type and quality of evidence, as well as the challenges of proof created by reporting delays or issues of memory.  On the other hand, there is a possibility that such a juror might not be empathetic because he or she endured something personally that they perceive to be much worse (and without compensation). 

Voir dire is therefore key to jury selection of prospective jurors.  As a first step, Plaintiffs’ counsel would be wise to seek jurors likely to presume that complaints of harassment or discrimination are credible.  Research by the Doar Research Center suggests that younger and female jurors are more likely to do so compared to their older and male counterparts.  In addition, these groups are more likely to believe that gender-based discrimination or harassment is prevalent.  Doar’s research further shows that youth is correlated with believing that harassment based on gender or any other identity is common.  See Ellen Brickman and Chad Lackey, The Doar Research Center, “Perceptions of Discrimination And Harassment in a # MeToo World” (2018), at 9. 

            Jury selection in a sexual harassment or discrimination trial, as in any case, will include the court striking jurors “for cause” and the parties using preemptory challenges to remove jurors if they cannot weigh fairly the evidence or follow the Court’s instructions.  Voir dire requires cultivating candor in jurors’ answers, where many may not be inclined to share intimate but relevant experiences and opinions.  The highly personal questioning needed to assess bias demands a tone of respect and patience.  Empathy needs to be explicit and repeated to avoid jurors withdrawing or responding negatively to questioning, particularly in a formal, sterile environment.  See Claire C. Kates, Protecting the Impartial Jury: A Solution of Questions, 35 St. Louis U. Pub. L. Rev. 415, 432–34 (2016) (In questionnaires in Arizona between 1997 and 2000, “prospective jurors stated that they were concerned by the fact that lawyers do not seem to listen…; lawyers are perceived to pick on the jurors they do not like and belittle them; and the questions asked by the lawyers invade privacy of the potential jurors.”). 

            Where possible, counsel should seek to strike a balance between providing privacy to individual jurors and allowing jurors to have the benefit of each other’s responses.  Privacy to an individual juror provides comfort for that juror and, as a result, facilitates openness and honesty.  Moreover, privacy is particularly important when asking about jurors’ experiences about traumatic experiences because such conversations can be re-traumatizing.  At the same time, it may be valuable to have jurors hear one another’s responses to the voir dire.  Where jurors have can hear each other’s answers, that may cultivate openness across the group and facilitate a more open conversation.  Often the first prospective juror who opens up inspires the others to be candid as well, which might suggest starting with a prospective juror who seems most forthcoming where possible.  Last, some attorneys have reported jurors being “more forthcoming and expressive in their responses to voir dire questions on the issue of sexual harassment and assault” in the post #MeToo era.  Laura L. Cominic, Theodore O. Prosise, “Jury Selection in the #MeToo Era,” Tsongas The Advantage Blog (Sept. 7, 2019). 

            It is important to remember that closing voir dire to the public or allowing for portions of communications to be completely private vary by courthouse, and are constrained by the public’s First Amendment right of access.  United States v. Loera, 2018 WL 5624143, at *1 (E.D.N.Y. Oct. 30, 2018) (“[T]he presumption of an open voir dire proceeding ‘may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’” (quoting Press–Enterprise Co v. Superior Court of California, 464 U.S. 501, 510 (1984))).  A more informal practice of sidebar conversations may be sufficient to protect jurors and encourage candor.  See Lauren A. Rousseau, Privacy and Jury Selection: Does the Constitution Protect Prospective Jurors from Personally Intrusive Voir Dire Questions?, 3 Rutgers J. L. & Urb. Pol’y 287 (2006) (describing how “it is easier for a juror to lie in response to a sensitive question than to call attention to himself and the issue” due to “concerns about privacy”).

            Each court will have its own rules and procedures for conducting voir dire.  In some courts, the judge or a law clerk will conduct the questioning with input from the parties.  In other courts, counsel for each side will be allowed directly to conduct questioning of the jury pool.  Where litigators are allowed to conduct the questioning, voir dire will involve competing goals: the selection of a jury, of course, but also the ultimate jury’s first impressions of the facts and issues of the case, as well as the attorneys themselves.  Where allowed by the court, parties should seek to use written questionnaires for potential jurors as part of voir dire, including the opportunity for jurors to indicate that they prefer to discuss answers in private.

            Finally, litigators should be prepared to articulate to the court where the line on “for cause” strikes should lie, and to use preemptory strikes for borderline cases.  Preemptory challenges on the basis of sex, race, ethnicity or religion are prohibited under the Batson doctrine, and counsel must be careful to adhere to this prohibition where seeking to use statistical assumptions based on race or gender to stand in for factual information about a specific juror’s attitudes.