Jury selection in employment cases provide unique opportunities and challenges for litigators. Employment cases differ from most other cases that come before a jury in that the majority of jurors come in with personal experience with employment. They have been employees, employers or both. In contrast to patent cases or securities litigation where we often hear juror concerns about being unqualified to render decisions, jurors in employment cases may actually overestimate their own qualifications for judging employment matters. They can run the risk of letting their self-professed experience-based expertise outweigh the case facts and even the law in their verdict decisions.

This particular risk increases when we consider several factors that have gained heightened importance in employment matters in recent years, including #MeToo, political polarization, and COVID-19. The #MeToo movement dramatically changed people's thinking about gender-based behavior in the workplace, raising both willingness to discuss personal experiences and heightened attention to the prevalence of such experiences. And, once jurors are willing to discuss their experiences, research suggests they have much to say. In 2018 and then again in 2020, DOAR conducted surveys of 1000 American citizens in the New York and Los Angeles metropolitan areas. We asked about experience with workplace-based discrimination and harassment, estimates of both how prevalent such incidents are and the extent to which they are reported, and attitudes about the #MeToo movement. Brickman, E. & Zichella, R., Implications for litigating employment cases in a #MeToo world, DOAR Research Center (July 25, 2020).

These surveys revealed just how personal discrimination and harassment are to American jurors. Thirty-seven percent of our respondents reported personally experiencing at least one of these and an additional 20% said someone close to them had even though they themselves had not—a category we term vicarious experience. Most often, this harassment or discrimination was gender-based. Moreover, the extent of such experiences was directly related to beliefs about the prevalence of workplace harassment and discrimination: Those with direct experience gave the highest estimates, followed by those with vicarious (but no direct) experience. Those who reported neither saw discrimination and harassment as less common than did anyone else. And, experience with one form of disparate treatment (e.g., gender-based) was associated with higher prevalence estimates of other forms of discrimination and harassment as well. So presumably, jurors with more personal experience are coming into the courtroom with a stronger general predisposition to believe a plaintiff claiming discrimination or harassment.