Juror Attitudes in the Age of the Coronavirus: Discrimination and Harassment Lawsuits

The data referenced in this article was collected in March 2020 as part of our 2020 Juror Attitudes in the Age of the Coronavirus survey. This article should be reviewed in conjunction with our Overview article. For a copy, please contact [email protected]. The statements, opinions and results listed in this document may change as the landscape caused by the pandemic evolves.

Key Findings on Discrimination and Harassment Lawsuits

With decades worth of jury research data, DecisionQuest is uniquely positioned to comment on juror attitude trends. We find that several attitudes about discrimination and harassment in the workplace have remained relatively consistent across decades of our research. Respondents in this 2020 Juror Attitudes in the Age of the Coronavirus survey held similar attitudes on the following issues as seen in our 2008, 2016 and 2018 national juror surveys as well as compared to responses provided by surrogate jurors who participated in various DecisionQuest jury research projects from 2000-2014:

• 60% agree that that racial discrimination is common in the workplace
• 66% believe most discrimination lawsuits are justified
• 75% believe most harassment lawsuits are justified
• 70% believe that retaliation is common after an employee complains of harassment

Given that these percentages are consistent across large samples of jury-eligible respondents from our various surveys conducted over decades, these findings can be considered highly reliable and representative of the sampled population and not occurring on the basis of random chance.

There are however, signs of changes in prospective jurors’ experiences and attitudes about discrimination and harassment in the workplace. Although the comparative data reveals a more positive view of employers’ actions to prevent discrimination and harassment in the workplace, the proportion of people reporting experience with harassment has increased. This may be a function of increased support as a result of the “Me Too” Movement for those that elect to report their experiences. In our 2008 National Juror Survey, 22% of the respondents reported that they, or someone close to them, had experienced sexual harassment in the workplace. Ten years later, in our 2018 National Juror Survey, more than double that percentage of respondents (48%) indicated that they, or someone close to them, have experienced sexual harassment in the workplace. There was not much change from the 2018 survey to the results found in this 2020 survey; 49% of respondents said they, or someone close to them, have experienced
sexual harassment in the workplace.

Have you, or anyone close to you, experienced sexual harassment in the workplace?

Despite this spike in experiences with sexual harassment in the workplace over the course of the last twelve years, there is an upward trend in the perception that corporate America is effectively addressing sexual harassment. More respondents believe that corporate America has done a “very good” or “good” job in preventing sexual harassment in the workplace in 2020 (40%) compared to respondents in 2018 (27%) and 2008 (35%). The dip in 2018 may be a function of how corporate America came under scrutiny in the midst of the “Me Too” Movement.

How good of a job has corporate America done in fighting sexual harassment in the workplace?

Consistent with the shift in perception that employers are taking more action to prevent sexual harassment (shown in the chart above), fewer respondents in this 2020 Juror Attitudes in the Age of the Coronavirus Survey agree that employees who engage in conduct considered to be sexual harassment experience minimal repercussions for their behavior in comparison to respondents from our last National Juror Surveys (shown in the chart below). While the majority (55% to 76%) of respondents across the surveys indicated they “strongly” or “somewhat” agree that employees who engage in conduct considered to be sexual harassment typically only get a “slap on the wrist” from their employer, there is a 14-point decrease between 2018 and 2020. In other words, more jurors today believe that employers take more severe action against employees engaging in sexual harassment.

Typically, employees who engage in conduct considered to be
sexual harassment get only a “slap on the wrist” from their employer

Additionally, fewer respondents in the 2020 Juror Attitudes in the Age of the Coronavirus Survey (54%) believed it was common for women to be passed over for promotion in management and supervisory roles in spite of being qualified than respondents in the 2018 National Juror Survey (66%) and in the 2016 National Juror Survey (57%). This question was not asked in the 2008 National Juror Survey.

How often do you think women are denied opportunities to advance to management or supervisory positions even when they are qualified for such positions? 

Notwithstanding the more positive views of employers and their efforts to prevent sexual harassment, most of the respondents from this survey found in favor of the plaintiff in response to the labor employment scenario described below.

To understand how reactions to the pandemic might impact juror decision making, as part of the Coronavirus Survey, we included a brief case summary of a discrimination and harassment lawsuit scenario and asked respondents to render decisions on liability and damages. This is a well-established methodology, both in proprietary research like ours, and in the peer-reviewed, academic literature. We created a brief fact pattern with typical elements seen in many actual sexual harassment cases from both the plaintiff and defense perspectives.

The case scenario presented to respondents involved a female plaintiff with claims of harassing behavior of a sexual nature, retaliation and lack of action by management. The allegations described inappropriate comments and actions by a manager that gradually escalated in severity, culminating in a negative rating by the manager following the plaintiff’s rejection of the manager’s request to begin a sexual affair. She alleged that this resulted in the loss of a raise received by comparable employees and that when she brought a complaint to HR, management retaliated by putting her on probation and firing her a month later.

Her case was contrasted with defense arguments of a poor performing employee (with documented warnings in her file), and falsifications on her employment application. Witnesses testified that the plaintiff’s attitude and performance changed after a different coworker had broken off an affair she had been having (in violation of company policy). The company also argued that appropriate affirmative actions were taken against the alleged harasser, including forcing him to take early retirement. Since she did not report the harassment for several months, the company says it is not liable for the inappropriate behavior of her manager, so her employer should not have to pay any damages and should not be punished. Respondents were asked which party they favored, what amount of claimed damages ($10 million) they would award and the extent to which the corporate defendant should be punished.

• The majority (73%) of respondents favored the plaintiff and the remaining 27% favored the defense.
• In terms of damages:
  • 17% said they would award nothing
  • 32% said they would give one fourth of what was requested
  • 25% said they would give half of what was requested
  • 15% said they would give three fourths of what the plaintiff requested
  • 5% said they would award all of the damages claimed
  • 6% of respondents said they would give everything the plaintiff asked for plus more
• More respondents than not said that the employer deserved to be punished in the case: 10% said “not at all,” 23% said “a little,” 38% said “some,” and 29% said that the employer “very much” deserved to be punished.

These findings show that of the respondents sampled, more respondents than not leaned slightly in favor of a plaintiff in a discrimination and harassment lawsuit against a corporate defendant. Moreover, 51% of the respondents were willing to award at least half of the amount of damages requested by the plaintiff.

How does the defense overcome a bias against a corporate defendant in a discrimination and harassment lawsuit and minimize its risk exposure? By identifying pro-plaintiff jurors during jury selection and excusing the most dangerous jurors to your case. How is this done? Through pretrial jury research and the development of a juror profile.

Using the data collected from this 2020 survey, our jury consultants conducted a statistical analysis examining the relationship between the respondents’ demographic, experiential and attitudinal data in regard to their verdict leaning and amount of damages they would award in the case scenario that was presented to them in the survey.

This analysis of the survey data was conducted to develop a juror profile. Note that the survey included additional questions such as the respondents’ experiences and opinions about the novel Coronavirus and other common litigation issues (the Overview article provides those findings in more detail). The juror profile analysis yielded several statistically significant results. Several factors were reliably associated with verdict decisions*:

• Respondents endorsing beliefs that women are often denied opportunities for advancement because of their gender were statistically more likely to find in favor of the plaintiff and to award her higher damages
• Respondents holding a strong opinion that women who raise harassment complaints are retaliated against were statistically more likely to find in favor of the plaintiff and to award her higher damages
• Respondents with greater anger against corporate America were statistically more likely to find in favor of the plaintiff and to award her higher damages
•  Respondents who believe sexual harassment lawsuits are usually justified were statistically more likely to find in favor of the plaintiff and to award her higher damages
• Additionally, respondents who indicated higher levels of concern that they or someone they know will become infected with the novel Coronavirus were statistically more likely to find in favor of the plaintiff and to award higher damages

Conclusion

Currently, prospective jurors* hold slightly more favorable views than in the past of employers in terms of their actions to prevent discrimination and harassment in the workplace, but many jurors still tend to favor a plaintiff in an employment lawsuit. A case specific juror profile can help you identify the worst jurors for your case.

The results from this initial survey offer preliminary insight into how the novel Coronavirus may impact jurors’ attitudes and juror decision making as we move forward and jury trials resume. DecisionQuest will continue to monitor the impact of the crisis to determine which beliefs and attitudes are reinforced or challenged and how they interact with jurors’ characteristics and juror decision making. If you have questions about our survey or how the novel Coronavirus may impact your jury trial, please contact [email protected] to discuss how we can help.

Stay safe, stay healthy and keep a positive outlook.

*Note: This juror profile is provided as an example. Each case is unique. Differences in the parties, witnesses and fact patterns, even in similar cases, can result in very different outcomes.

About the Authors:

Dr. Michael Biek is a Director for the Pennsylvania office of DecisionQuest. Dr. Biek has studied jurors’ reactions to disputes full-time for over twenty-five years. He has worked on over 1,000 cases since 1993 and has assisted litigators in court at over 160 jury selections in state and federal venues across the country. Dr. Biek has conducted research on multiple intellectual property, employment, securities, toxic tort, premises liability, product liability, antitrust, defamation, contract and professional malpractice cases.

Dr. Kelloir Smith is a Senior Consultant based in the Los Angeles office of DecisionQuest. With nearly twenty years of jury research and consulting practice, she has worked on hundreds of mock trials, online jury studies and trials across the country. Dr. Smith has extensive experience with a wide range of complex commercial litigation, including labor and employment lawsuits. In addition to conducting CLEs on topics such as jurors’ perspectives on employment lawsuits and women in the legal field, she has assisted litigators with trial preparation and jury selections for discrimination and harassment cases nationally.