© 2007 Morrison & Foerster LLP All Rights Reserved

Bias From AJuror’s Perspective

(revisited)Rick Bergstrom

Morrison & Foerster LLP

January 26, 2007

Overview

• Discrimination

• Sexual Harassment

• Retaliation/Whistleblower

Example re: Punitive Damages

If a company is found to be negligent, that company should pay punitive damages.

1% 2%8%

63%

26%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Data Background

• Gathered over 3 year period• Throughout U.S.• 50% Men / 50% Women• 50% C / 20% H / 20% AA / 10% A• 50% Over 40 / 50% Under 40• Education: High School and College • Approx. 10,000 participants

Discrimination

There should be less

government regulation.

Agree or Disagree?

And The Terminator Says?

23%

62%

11%4%

0%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

There should be less government regulation.

Which of the following statements best describesyour feelings?

29%

71%

It is more important to follow the "letter of the law"than the "spirit of the law":

It is more important to see that "justice is done"than to follow the "letter of the law":

White and minority employees are treated

equally in the workplace.

Agree or Disagree?

White and minority employees are treated equallyin the workplace.

37%41%

12% 10%

0%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Discrimination in the workplace has becomemore subtle.

Yes89%

No11%

The organization is negligent if it does not properly

document an employee’s performance problems.

Yes or No?

The organization is negligent if it does not properly document an employee's performance problems.

Yes91%

No9%

Sexual Harassment

Sexual harassment is a common occurrence in

the workplace.

Yes or No?

Sexual harassment is a common occurrence in the workplace.

Yes72%

No28%

Sexual harassment has become more subtle.

Yes79%

No21%

Do women report sexual harassment to their employers if it has

occurred?

Yes or No?

Do women report sexual harassment to theiremployers if it has occurred?

Yes17%

No83%

Some people try to tolerate a certain amount of joking and offensive behavior at work in order to

fit in with others.

Yes94%

No6%

I would be suspicious of a woman who claimed she was sexually harassed at work if she waited several months to report the

incident.

Yes or No?

I would be suspicious of a woman who claimed she was sexually harassed at work if she waited several months to

report the incidents.

Yes22%

No78%

If an employee does not complain about sexual harassment,there is nothing the company can do about it.

Yes69%

No31%

Most organizations say they strictly enforce their policies regarding harassment in the

workplace, but they really don’t.

Agree or Disagree?

Most organizations say they strictly enforce their policiesregarding harassment in the workplace, but really don't.

0%

15%19%

62%

4%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Most organizations investigate allegations against employees

more thoroughly than those made against a supervisor.

Agree or Disagree?

Most organizations investigate allegations against employees more thoroughly than those made against a supervisor.

9% 10% 11%

59%

11%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

In a sexual harassment lawsuit, the most importantinformation about what happened usually comes from the

people who worked with the person bringing the suit.

4%

24%20%

48%

4%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

In a dispute between the employee and a big organization,who would you tend to believe?

Employee88%

Big Organization12%

In a dispute between an employee and his/her supervisor,who would you tend to believe?

Employee57%

Supervisor43%

A company should terminate a supervisor who physically

touches an employee in a sexual manner?

Yes or No?

A company should terminate a supervisor who physicallytouches an employee in a sexual manner.

Yes96%

No4%

Any supervisor who makes reference to an employee about

oral sex should be fired.

Yes or No?

Any supervisor who makes references to an employeeabout oral sex should be fired.

Yes70%

No30%

It would be extremely difficult to keep working for a supervisor whom you filed a sexual harassment

complaint against .

Yes96%

No4%

Key Sexual Harassment Issues For Jurors

• Was a supervisor involved?• Was the conduct verbal or physical?• Did plaintiff say stop?• Did plaintiff participate or initiate any acts?• Did plaintiff report the issue?• Was a prompt investigation conducted?• Was plaintiff kept informed?

Retaliation/

Whistleblower

4%0% 0%

42%

54%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

It is very important for people tostand up for what they believe in.

It is common for a supervisor to retaliate against an employee

who participates in an investigation of claims of

unlawful conduct.

Agree or Disagree?

It is common for a supervisor to retaliate against an employee who participates in an investigation of claims

of unlawful conduct.

0%

16%

28%

46%

10%

Disagree strongly Disagree Neither Agree Agree strongly0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Avoiding an employees who has complained of misconduct can

be considered retaliation.

Agree or Disagree?

No longer being invited to social events after work can be considered retaliation by

co-workers.

Agree or disagree?

If an employee mentions informally to any supervisor that he/she is being harassed by co-workers, that supervisor has no

obligation to report it to the company.

Agree or Disagree?

If an employee mentions they are being harassed by co-workers to

a supervisor and asks that nothing be done, the supervisor

should do nothing.

Agree or Disagree?

Retaliation Themes

• Expect that it will happen following complaint (or at least assume people will think it is happening).

• Screen for it in reviews, promotions, transfers, terminations, and layoffs (material events).

• Train managers to report any complaints or concerns.

• Follow-up with whistleblower and co-workers.

The End