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Inside
the Mind of a Juror: The Psychology of an Employment Lawsuit
Mention
the words "employment lawsuit" and CEOs respond with terror. Some
of the reasons for this fear - the exorbitant legal costs, a tarnished
public image, and the inevitable work disruption - are both realistic
and valid. Others, perhaps, are not. In particular, the common
perception among senior executives that jurors in employment litigation
are either a) from a different planet; b) temporarily insane during
the trial, or c) a saboteur on the payroll of their biggest competitor,
is inaccurate.
In
reality, jurors are people just like you and me. They've worked
for companies, they've managed employees, and they've generally
been around the block. Understanding how jurors think during employment
litigation can not only help employers prevent an unfavorable
verdict should a CEO's worst fears be realized, they can provide
valuable insight into how your employees view what's happening
at work right now. In this article, I'll share nine lessons I've
learned serving as an consultant and expert witness during employment
litigation - and how they can perhaps help human resource professionals
promote a productive and lawsuit-free work environment.
Lesson #1: Strike before the iron is hot. Jurors expect
employers to take action to prevent problems. In fact, in a recent
juror poll, researchers found that jurors place less significance
on how a company responds to sexual harassment complaints, and
more emphasis on the policies and procedures designed to prevent
harassment from occurring. (Gallipeau, Dan R., Jurors' Views of
Sexual Harassment in 2001, New York Employment Law Practice, May
29, 2001).
Waiting
for a complaint and then handling it accordingly may not always
be enough. Companies must actively look for ways to improve and
revamp their harassment policies. Otherwise, employers may find
themselves opposite an angry juror whose main question will not
be "how could this happen," but rather, "how much should it cost."
Lesson #2: Do the right thing - promptly, consistently, thoroughly
and fairly. Jurors also give great weight to the promptness
of company investigations and company responsiveness to employee
complaints. In a juror's mind, one prior accusation, even if it
was years ago, puts the company on notice that there may be a
harassment problem. If this problem is not corrected immediately
and another complaint surfaces, jurors point to this as an indication
of the company's "tendencies." Also, employers must be aware that
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. Thus,
it is critical for employers to promptly investigate all claims
of harassment, no matter how trivial in substance the complaints
may initially appear to be.
Lesson
#3: Don't look for skeletons in the plaintiff's closet. How
many times have I heard a plaintiff talk at length about the interrogation
she received once she complained about offensive behavior? "Why
do you think he pick you?" Why didn't you speak up sooner?" "Didn't
the two of you used to date?" Complaining employees are slow to
forgive a manager - no matter how well intentioned - who steers
the conversation to the behavior of the victim rather than the
deeds of the offender.
So are juries. Jurors generally don't like defenses that focus
on the negative attributes of a plaintiff's job performance or
conduct to justify a company's decision to fire, demote, or otherwise
take adverse action against the plaintiff. This often comes up
in the case of a chronically tardy or permanently obnoxious employee
who is never disciplined for these behaviors until s/he is terminated
or complains about a manager's behavior. In a harassment or discrimination
lawsuits, jurors are focused on fixing a perceived problem with
the company, not evaluating whether a plaintiff has skeletons
in her closet. The "bad plaintiff" defense should never be the
sole focus of a company's defense strategy, just as the "bad employee"
conversation should never come up during an offensive behavior
complaint.
Lesson
#4: Make the punishment fit the crime - NO EXCEPTIONS. If
an internal investigation indicates that harassment took place,
jurors take a close look at whether the company's discipline of
the harasser fits the misconduct. Jurors, like employees, generally
hold a supervisor to a higher standard than a coworker. For example,
94% of polled jurors felt that a company should terminate a supervisor
who physically touches an employee in a sexual manner. Most polled
jurors (83% percent) said they believed that executives who sexually
harass subordinates do not get disciplined severely enough by
their employers.
In
my experience, most jurors do not like disciplinary actions that
are influenced by money. In fact, if a juror believes a harasser
received less discipline because of his or her importance to the
company's bottom line (i.e., the harasser is a key deal maker
for the company), the juror to apply this same motivation in the
deliberation room - by awarding the plaintiff more monetary damages!
Lesson
#6: Jurors have a hard time trusting you. Jurors know bad
things still happen at work and that it's not always easy to speak
up when they do. Seventy- two percent of polled jurors believe
that sexual harassment at work may be less blatant, but it still
happens. Both male and female jurors (75%) say they believe a
woman who said she was sexually harassed at work. And, for employers
who use as a defense the fact that an employee does not report
the harassment until they file an action, the poll brings sobering
news: Only 22% of the survey's respondents thought that it looked
suspicious when a woman waited several months to report sexual
harassment.
Jurors
are, for the most part, willing to ascribe many reasons for a
delay in complaining about offensive behavior, including the cultural
background of the plaintiff and the need for her to "be one of
the guys." Jurors are also willing to consider that a female might
not want to disclose to a male supervisor that she was harassed,
especially if the alleged harasser was in a senior position. From
a practical standpoint, employers need to broaden their focus
from legally defensible policies and procedures to a practical
focus on building a respectful work culture, providing multiple
channels of reporting, and teaching their managers sound interpersonal
skills.
Lesson #7. Meet your employees' expectations. A 1996 survey
by Dispute Dynamics survey found that 74 percent of the potential
jurors surveyed felt that employers act more unethically now than
they did 20 years ago. Seventy-four percent also thought that,
before terminating an employee, the employer must warn the employee,
make sure the employee understands the rule or policy that has
been violated and give the employee a chance to correct the problem.
Jurors have certain expectations about how employees - particularly
long-term ones - should be treated by their employers. Regardless
of the technical merits of a case, an employer who violates these
expectations may wind up on the wrong side of a jury verdict.
Of
course, it's these same interpersonal violations that often precipitate
a lawsuit to begin with. Employees, for example, expect due process
for performance problems, don't like surprises (such as unanticipated
layoffs), and are angered by unethical or misbehaving managers.
Employers who take steps to train their managers in the interpersonal
skills needed to be effective managers are likely to have less
lawsuits - and to win the ones they do.
Lesson
#8. Manage Your People's Stress Level. A systematic survey/interview
of 269 actual civil jurors from 36 trials [See Mott, Hans, and
Simpson (2000), Law and Human Behavior, 24(4), pp. 401-419] has
demonstrated that many jurors feel ill equipped to make damage
judgments and consider this phase the most difficult part of their
service. On top of this, the damages phase comes at a time when
jurors have the least amount of energy to apply to the task at
hand. Thus, jurors are tired and frustrated, but they need to
find a way to come to a decision. Under these circumstances, it
is no wonder jurors use simple decision strategies to come to
a final damage decision. Simple cues, such as the damage numbers
the plaintiff (or defense) mention, can be powerful predictors
of the final award. Likewise, levels of emotional arousal created
by the case can play a greater role in the size of the verdict.
Thus, the ability to get the jury angry or keep them calm about
case issues can have a powerful effect on how the jury conducts
its damage analysis.
Isn't
the same true of managers? Managers who are overworked or under
trained are most likely to make errors in judgment when handling
offensive behavior complaints.
Lesson
#9. Jurors feel protective of the underdog. Most people have
a very normal inclination to see themselves as better than average,
a tendency psychologists refer to as "self-serving bias." It may
seem counterintuitive, but this tendency very often leads jurors
to be more receptive to the plaintiff's case. Because jurors see
the injured plaintiffs as less competent than themselves (and
certainly less competent than a corporation), they are more likely
to believe they need protection. This makes claims that the plaintiff
has been taken advantage of by some larger entity are highly credible.
In
the courtroom setting, the self-serving bias manifests itself
when jurors seek to excuse problems in the plaintiff's case or
the plaintiff's conduct by citing the relative incompetence of
that plaintiff in comparison to themselves. It is important to
note that jurors are not simply saying the plaintiff is not as
powerful or competent as a corporation. They are saying the plaintiff
lacks the skill and ability of the juror. The jurors credit themselves
as not having the same weaknesses (or at least not to the same
extent of the plaintiff), and therefore, find it easier to understand
how the plaintiff became a victim of the defendant's conduct.
The self-serving bias create problems for defendants because it
means jurors may require the defense not to simply show it behaved
reasonably, but that the defendant behaved in a manner sufficient
to protect the more "simple-minded" plaintiff. In effect, jurors
are taking a paternalistic approach to the plaintiff and the class
of people the plaintiff represents.
British
author G. K. Chesterton once said, "Our civilization has decided
that determining the guilt or innocence of men is a thing too
important to be trusted to trained men. . . . When it wishes anything
done which is really serious, it collects twelve ordinary men
standing round." While there may be the occasional runaway jury,
most members of a jury think a lot like your managers and employers.
By understanding the psychology they use in the courtroom, perhaps
we can all help prevent lawsuits and improve the morale of the
workplace.
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NEED
A SPEAKER FOR YOUR HR AUDIENCE? CONTACT DR. JOHNSTON TO SPEAK
TO YOUR GROUP!
Dr.
Johnston, author of The Complete Idiot's Guide to Psychology and
monthly columnist for several HR publications, often speaks to
national human resource audiences on topics such as "The
Psychological Road From Employee to Plaintiff: How to Avoid Wrongful
Termination Lawsuits," "Turning Employment Liability
into Employee Retention," and "Dealing With Psychiatric
Disabilities at Work."
To
contact her for a speaking engagement, e-mail her at jonij@workrelationships.com.
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