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Juror Bias in the Trump Era?

I have tried many employment discrimination cases since the Civil Rights Act of 1991 allowed for jury trials. Lawyers who represent plaintiffs in employment discrimination cases have told me that they are more likely to strike potentially conservative jurors for the same reasons that defense lawyers will strike liberal ones in a discrimination case. Although a prospective juror’s approach to the issues in a discrimination case are more likely shaped by their work and life experiences (or those of loved ones), it is important to realize that strong political views can also have a significant effect on a juror’s views in employment cases.

Given the increased polarization of political opinions and the rise of political antipathy — often exacerbated by social media and cable news outlets — I have wondered whether a very conservative juror would be even better for the defense in an employment case than a moderately conservative juror. Last week during a presentation at the Labor and Employment Law Institute sponsored by the Labor & Employment Law Section of the State Bar of Texas, the general consensus of the lawyers present — which consisted of some of the most experienced employment trial lawyers in the state — was that jurors who might inhabit an “ideological silo” might not be good jurors for either side. While we all want jurors who will agree with our theory of the case, good jurors are also jurors who can persuade those who disagree with them and build consensus. A juror who is prone to making strong or incendiary comments about race or gender (from either side of the political spectrum) is not likely to be persuasive and may simply cause your jury to hang.

Additionally, and this may be counterintuitive, jurors who are on the far end of the political spectrum may actually be more unpredictable than jurors who are moderately liberal or conservative. Picking a jury will always be challenging. Every experienced trial lawyer can tell you stories of jurors who surprised them: the juror that they thought was their strongest juror who ended up being the sole holdout or the juror that they reluctantly kept who ended up being their case’s biggest advocate during deliberations. The current political climate has simply made the process of divining which juror to pick more difficult.

What this means to an employer is that when employment decisions are made, the overall context of the decision needs to be considered. Ask yourself, how would those on either side of the often strident debates relevant to the workplace view this decision, and is there anything to be done to avoid the negative reaction should one of these people be on the jury of your peers.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.