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With the advent of Court TV and other sources of free information, such as the Internet, employees have become more aware of their rights and the power they can wield. Similarly, the bonds of corporate loyalty have been shattered: Many employees view themselves as little more than a tool to be used by the company and discarded when profitability is affected or management is irritated. This combination of an increased awareness of the individual’s power and a cynical view of corporate behavior provides a fertile environment for sexual harassment allegations to gain instant credibility. The standards jurors apply to corporations regarding training and investigations have also continued to rise. A key change over the years is that jurors expect companies to be proactive, rather than reactive, to allegations of misconduct. For example, the question of whether a company checked in with the “victim” regularly, rather than asking her to come forward to the company if further harassment were to occur, is an issue commonly discussed in jury deliberations. THE ‘BAD’ PLAINTIFF IS NOT ENOUGH Typically, the overwhelming majority of jurors who vote for the plaintiff are, in fact, primarily motivated to find “against the company” rather than “for the plaintiff.” This is a dynamic that is often ignored by defense counsel. It focuses the jurors’ fact-gathering abilities on the larger goal of protecting present and future employees by forcing the company to fix problems now. Under this viewpoint, even a terrible plaintiff can bring legitimate problems to the forefront. An example from a recent case demonstrates this point: A female plaintiff was fired for chronic tardiness, before the sexual harassment investigation of her female supervisor had gotten very far. After the termination, the investigation was never completed. Jurors were adamant that, while the plaintiff did deserve to be fired for her tardiness, the company still had an obligation to complete the investigation and punish the harasser if the allegations proved to be true. THE CHANGING WORK PLACE IN 2001 The majority of jurors will admit that there has been significant improvement in the work place in terms of sensitivity to sexual harassment issues and corporate training. This is particularly true among older jurors, who have more of a historical perspective on positive changes in the work place. However, even with this improvement, jurors (especially female jurors), continue to stress that there is still much to be done. In national jury research conducted by Dispute Dynamics Inc., several examples of juror attitudes demonstrate this point. When asked if sexual harassment is a common occurrence in the work place, 72 percent of the jurors polled said “yes.” They felt, however, that sexual harassment had become more subtle in recent years (57 percent), and only 18 percent of them had actually witnessed sexual harassment in the work place. The polled respondents felt that there was widespread sexual harassment in the work place, even though only a few of them had actually seen it occur. Clearly these jurors’ attitudes were not shaped primarily by personal experience, but by the media and by their circle of friends. There are juror attitudes on which the defense can build. Left to their own devices, however, jurors will incorporate primarily pro-plaintiff attitudes and experiences into the jury deliberations, so it is imperative that defense counsel raise pro-defense attitudes to the surface. For example, 69 percent of the jurors polled agreed that if employees don’t complain about sexual harassment, the company can do nothing to help them, and 67 percent felt that it is difficult to determine if sexual harassment has actually taken place. NOTICE — A VAGUE AND BROAD STANDARD Notice is a dangerous issue. One prior accusation, even if it was years ago, is seen by a large minority of jurors as having put the company on notice. In a recent case, an accusation made six years earlier, at a prior company, which resulted in no discipline, came to light in the investigation of a sexual harassment allegation against a supervisor. Many jurors considered this to constitute notice of the supervisor’s “tendencies.” Also, even a casual mention of a concern by an employee to an immediate supervisor or low-level human resources person, even off-site, is considered notice for many jurors. Most jurors polled felt that very few women reported sexual harassment to their employers (17 percent). Those same jurors, however, are very forgiving of a plaintiff who fails to report the harassment for a long period of time, unless there is serious violence or extreme physical contact. They are willing to ascribe many reasons for the delay. These include such things as the cultural background of the plaintiff and the need for her to “save face” or to “be one of the guys.” Jurors are willing to consider that a female might not want to confide to a male company representative that the situation occurred, especially if the alleged harasser was in a senior position. Only 22 percent of the survey’s respondents thought that it looked suspicious when a woman waited several months to report sexual harassment. They also agreed that some people try to tolerate a certain amount of joking and harassing behavior at work in order to fit in (94 percent). All in all, both male and female jurors tended to believe a woman who said she was sexually harassed at work (75 percent). THE SPECIAL DYNAMICS OF SAME-SEX ALLEGATIONS Same-sex sexual harassment allegations are on the rise. These cases have somewhat different dynamics than the traditional sexual harassment case during litigation. First, voir dire becomes more important because of the undercurrent of homosexuality, with all the highly charged opinions that go with it. These attitudes are among the most difficult to elicit in court and, therefore, the quality of information obtained in voir dire is often quite poor. Somewhat better information can be obtained if the judge asks the questions, but the improvement in quality of information is much less than you might expect. The best way to get accurate information in these cases is through individual voir dire or the use of a jury questionnaire. A one- page, single-issue questionnaire, dealing with attitudes and experiences related to homosexuality, can be successful. When a case involves same-sex sexual harassment, we see a dramatic divergence between what jurors claim to believe and what they expect management to believe. They feel that management is likely to handle a sexual harassment complaint against a female supervisor less seriously than a complaint against a male supervisor (77 percent). They are also more willing to believe that a male, rather than a female, supervisor would sexually harass a female employee (77 percent). In these cases, experience indicates consistent differences between how male and female jurors view the facts. Women are more willing to believe a woman can harass a woman and a man can harass a man, because they see the motivating factor for the harasser as power, not sex. Men tend to view the acts more in sexual terms and, therefore, find it difficult to believe that a supervisor would sexually harass a subordinate of the same sex. MITIGATING THE PERCEPTION OF A THREAT Next, jurors expect company decision-makers to acknowledge the obvious problems in working relationships when deciding on what actions to take once allegations of harassment have been made. Failure to do so is often interpreted as either company insensitivity or as “siding” with the alleged harasser and not taking plaintiff’s complaints seriously. Indeed, the victim’s perception of a potential threat is seen as a legitimate source of stress. Most of the jurors polled (96 percent) said that it would be extremely difficult to continue working for a supervisor against whom they had filed a sexual harassment complaint. Ninety-one percent of them also felt that the company had a responsibility to remove a supervisor from his or her supervisory position over an employee who had filed a sexual harassment claim against him or her. PUNISHMENT: CONFLICT BETWEEN EXPECTATIONS AND REALITY Another issue important to jurors is the corrective action taken by the company if harassment is found. In other words, did the punishment fit the crime? To the extent that the harasser is seen as “getting off easy,” jurors can become inflamed with what they see as an unfair situation. Many jurors are not surprised by minimal company reaction if the harasser is seen as contributing directly to profitability and efficiency or is seen as part of the “old boys club” of senior management. Testimony such as “… we never suspected anything … he was a good employee from our viewpoint … he kept the line moving …,” can be devastating at trial in that it shows the corporate priority may be profit above all else. Most of the jurors polled already believe this; eighty-three percent said they believed that executives who sexually harass subordinates get nothing more than a “slap on the wrist” by the company. Most jurors will always hold a supervisor to a higher standard, as a supervisor is more than just a co-worker to them. Ninety-four percent of those polled felt that a company should terminate a supervisor who physically touches an employee in a sexual manner. ‘I WAS AFRAID OF LOSING MY JOB’ A common argument for not reporting harassment in a timely manner is the fear of retaliation. Jurors are perhaps even more willing to believe this argument today than years ago, given years of downsizing and the end of corporate loyalty. Of the jurors polled, 76 percent felt that it was a common practice for companies to retaliate against employees for reporting unlawful conduct, even when the report is made only within the company. Companies continue to run their businesses, legitimately disciplining employees when necessary, yet jurors seldom view any discipline they themselves have experienced as justified. They tend to apply this same rationalization to the plaintiff. The perceived unfairness of their own disciplinary experiences leads many jurors to the conclusion that similar actions taken against the plaintiff must have been motivated by retaliation. In conclusion, corporations will continue to be held to a higher and higher standard of training and investigation at the same time that the employee pool feels more empowered to take action. In addition, the pool of potential litigants grows as nontraditional situations grow. There is a clear message from jurors that proactive rather than reactive behavior is expected of companies. Effective defense strategists will word examination questions and portray their clients’ situations accordingly. Dan R. Gallipeau, Ph.D, is co-founder and president of Dispute Dynamics Inc., a national litigation consulting firm in Torrance, Calif.; telephone: (310) 792-9080; e-mail: [email protected]

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