YOU BE THE JUROR: VOIR DIRE IN SEX DISCRIMINATION CASES

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1 YOU BE THE JUROR: VOIR DIRE IN SEX DISCRIMINATION CASES Sponsor: Labor & Employment Law Section CLE Credit: 1.0 Thursday, June 22, :50 a.m. - 11:50 a.m. East Ballroom C-D Owensboro Convention Center Owensboro, Kentucky

2 A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio Kentucky Bar Association

3 TABLE OF CONTENTS The Presenters... i You Be the Juror: Voir Dire in Sex Discrimination Cases... 1 Plaintiff's Proposed Voir Dire... 5 Defendants' Proposed Voir Dire... 13

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5 THE PRESENTERS Barbara D. Bonar Law Offices of Bonar, Bucher & Rankin, PSC 3611 Decoursey Avenue Covington, Kentucky (859) BARBARA D. BONAR is the president and founding partner of Bonar, Bucher & Rankin, PSC in Covington and practices in the area of employment litigation. She is also a certified mediator and arbitrator and served for twenty-six years on the American Arbitration Association panel. Ms. Bonar received her undergraduate degree and J.D. from the University of Kentucky. She is admitted to practice in Kentucky and Ohio and before the United States District Court for the Eastern and Western Districts of Kentucky and the Southern District of Ohio, as well as the United States Supreme Court. Ms. Bonar served as president of the Kentucky Bar Association and is a founding member of its standing Committee on Diversity in the Profession. While president of the KBA, she initiated and chaired Kentucky's first and only Rule of Law Symposium. She is a member of the Northern Kentucky, Cincinnati and Kentucky Bar Associations, the American Trial Lawyers Association and serves as president of the Kentucky Employment Lawyers Association. Michael W. Hawkins Dinsmore & Shohl, LLP 255 East Fifth Street, Suite 1900 Cincinnati, Ohio (513) Michael.hawkins@dinsmore.com MICHAEL W. HAWKINS is a partner in the Cincinnati office of Dinsmore & Shohl, LLP and practices in the area of labor and employment law. He received his undergraduate degree and his J.D. from the University of Kentucky. Mr. Hawkins is admitted to practice before the United States District Court for the Eastern and Western Districts of Kentucky, the Northern and Southern Districts of Ohio, the United States Court of Appeals for the Sixth and Eighth Circuits and the United States Supreme Court. He is a member of the Cincinnati, Kentucky and Federal Bar Associations. i

6 Bernard R. Mazaheri Morgan & Morgan 333 West Vine Street, Suite 1200 Lexington, Kentucky (859) BERNARD R. MAZAHERI is an attorney in the Lexington office of Morgan & Morgan where he practices in the area of labor and employment law. He received his B.A. from Auburn University and his J.D. from Loyola Law School. Mr. Mazaheri is a member of the Kentucky, Florida, Texas and New York Bar Associations as well as the American Bar Association and its Labor and Employment Law Section. He serves as Co-chair of ADEA, a subcommittee of the Federal Labor Standards Legislative Committee of the ABA Labor & Employment Law Section. Mr. Mazaheri is a former vice-president of the Florida chapter of the National Employment Lawyers Association ( ) and vice co-chair of the Development Revenue Committee of the ABA Labor & Employment Law Section ( ). ii

7 YOU BE THE JUROR: VOIR DIRE IN SEX DISCRIMINATION CASES Bernie Mazaheri I. INTRODUCTION Selecting a jury is an art. The outcome of cases may vary drastically depending on the makeup of the jury. Voir dire is the only opportunity to inquire about the views of jurors. Rule of the Kentucky Rules of Civil Procedure permits the trial court to conduct the examination by (1) the court, (2) counsel or (3) both court and counsel. In the event that voir dire is exclusively conducted by the court the parties will have the right to supplement the examination. People have varied views on sexual discrimination. Effective questioning of jurors is essential. A juror must be forthright. Olympic Realty Co. v. Kamer, 141 S.W.2d 293, 298 (Ky. App. 1940). The trial court has significant latitude in controlling jury selection. Rogers v. Commonwealth, 315 S.W.3d 303 (Ky. 2010). Trial courts have discretion to limit voir dire examination. Humana of Kentucky, Inc. v. Rogers, 726 S.W.2d 707 (Ky. App. 1986). However, the trial court may not preclude a party from inquiring about prejudices that would deny a party a fair trial. Hayes v. Commonwealth, 175 S.W.3d 574, 585 (Ky. 2005). The examining attorney must be conscious of the perspective of the jurors as it relates to: the facts of the case, and the specific societal views about the cause of action. Sex discrimination involves many scenarios. The first step is to identify your case. The broad categories of sex discrimination are (1) sexual harassment; (2) gender stereotyping; and (3) caregiver discrimination. Each of these three categories must fall under either (a) an adverse employment action or (b) a hostile work environment claim. Determining how the juror views your client s claim is the goal of jury selection. II. CATEGORIES OF SEX DISCRIMINATION A. Sexual Harassment Sexual harassment in the workplace has been impermissible for employers covered by Title VII since Meritor Savings Bank v. Vinson, 477 U.S. 57, 63 (1986). Despite half a century of illegality, sexual harassment persists. Last year 26,934 charges for sex discrimination were filed according to the Equal Employment Opportunity Commission. See Notwithstanding, prospective jurors may believe: (a) sexual harassment does not exist; (b) there should not be a cause of action for sexual harassment; or (c) the aggrieved employee invited the conduct. Voir dire should not be used to change the views of prospective jurors. Rather the objective is to select the best jury available. Open ended questions directly posed to individual jurors will allow the parties to determine the views of the panel. For instance, the plaintiff may start: Please raise your hand if you have heard of sexual harassment. Some 1

8 observations may reveal enthusiasm, dread or apathy. The examination ought to continue by selecting one of the jurors to answer the question: Where did you hear about sexual harassment? If the answer is at work, ask the panel who has witnessed sexual harassment at work. Use the answers to develop conversation between you and the panel. Silence from the jury means failure. Passionate answers, whether pro or con, with full participation will allow the inquirer to select the best jury. Know your case. If the employee-plaintiff was subjected to unwelcome advances that neither included perverse language nor touching, do not ask what constitutes sexual harassment. Rather ask whether it is appropriate for a man to ask a married woman out (if the employeeplaintiff is married). Why is it not appropriate? What if he really likes her; does that change your answer? What if he is very polite? What if the man asking the married woman out is her supervisor, would that make it worse? Why? Ideally this line of questioning will allow the employeeplaintiff to identify the best jurors. It may even provide the attorney a few quotes or stories from the jurors to use in opening or closing. A juror s view point about inappropriate conduct in general will be a factor in most sexual harassment cases. Additionally, the employee-plaintiff will have to address whether an adverse employment action occurred. In cases where a termination or demotion occurred questioning on this topic may not be vital. However, in cases where the employee-plaintiff retained the employment status or resigned, questioning the panel on these issues is essential. B. Gender Stereotyping Sex discrimination, also, encompasses gender stereotyping claims. Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004). Voir dire on such cases will have to be narrowly tailored. Voir dire will be the only opportunity to determine whether the jurors can be fair. The jurors must be made to feel comfortable providing their opinions on gender expectations. Make the jurors feel comfortable coming forward about their deep convictions. Imagine a case where the employer provides nationwide tire and general mechanical repair; the employee is a very feminine male, who obtains the job because of his experience in a large city working on vehicles but finds a very hostile work environment when he moves to a rural community. In such a case, the employee-plaintiff counsel may want to begin jury selection by stating that it is natural to have deep convictions about gender identity. Please raise your hand if you believe that men should act manly? Select a juror who affirmed and ask: Would you feel comfortable working closely, day in and day out, with a man that looked and acted like a woman? Do you think the government should force anyone to work in close spaces with such a person? Negative and hostile answers are not bad. In fact, they will open the door to cause challenges, identify the worst jurors for the employee-plaintiff 2

9 and possibly bring out some jurors that show empathy. In fact, the employee-plaintiff would be better served discovering the true feelings of the panel. Asking questions that enlighten counsel about the convictions of the jurors must be pursued. Do not ask questions that are guaranteed to get you a positive response. For instance, do not ask a juror if discrimination is wrong or do you agree that everyone should be treated fairly. Such questions will get you feel good answers from most, if not all, jurors. Unfortunately the answers will not identify jurors that are biased. C. Caregiver Discrimination Caregiver discrimination presents different challenges than sexual harassment and gender stereotyping claims. See Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003). It is possible to have a juror have opposite views about caregiver discrimination, than the juror has on the other types of discrimination. The reason for the variation is that in sexual harassment claims jurors' views on obscenity dominate; in gender stereotyping, opinions regarding gender identity dominate and in caregiver discrimination, societal views on familial duties and economics dominate. III. HARM SUFFERED There are two types of harm that an employee-plaintiff can suffer. On one hand, an employee-plaintiff may suffer a tangible adverse employment action, i.e. termination, demotion. On the other hand, an employee-plaintiff may be subjected to severe or pervasive harassment that is actionable but does not result in the employee-plaintiff suffering loss in pay. If liability is clear, then the focus of voir dire needs to be on damages. Inquiring about how the juror feels about damages is paramount. Some jurors do not believe that damages should be afforded to a plaintiff-employee. These jurors must be identified at jury selection. In cases where the employee was subjected to emotional trauma only, that issue should be addressed in voir dire. IV. AFFIRMATIVE DEFENSES Affirmative defenses do exist. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998). Often a corporate employer will claim that it did not know that the employee was harassed because the employee-plaintiff failed to notify it even though there was a hotline to call and directions in the handbook. If such an affirmative defense actually threatens an employee-plaintiff's case, then questions need to be asked of the panel. For example, please raise your hand if you have a physical copy of your employer s handbook. Please raise your hand if you have read your handbook. If the moment is right, try to develop juror answers that suggest to the jury pool that no one reads a handbook and most employers do not even give it to their employees. Inquire about who likes to talk to HR? If there are HR employees on the panel, ask what an employer should do; what happens when an employer fails to follow procedures. 3

10 Obtaining cause challenges may not be easy for affirmative defense questioning. However, obtaining answers from the panel that can be used in opening or closing may easily come. This is an opportunity to take the wind out of an employer s affirmative defenses. If valid affirmative defenses exist and they are ignored at jury selection, the employee-plaintiff may be at disadvantage at trial. V. CONCLUSION Jury selection is most important. It should not be ignored, especially in sex discrimination cases. People have a myriad of opinions that will directly impact an employment law case. Determining biased jurors is essential in getting a fair trial. Depending on the facts of the case and the jury pool, cause challenges may be developed and at minimum preemptory challenges will be improved by effective questioning. It is to the benefit of all parties to have juror questionnaires completed prior to jury selection. The parties ought to engage in preparing a joint proposed questionnaire well in advance of jury selection. On some occasions a party may need to file motion in limine prior to jury selection. The trial court has great discretion in setting the parameters for voir dire. In federal court many judges do not permit any questioning by counsel. In state court most trial judges permit some questioning but the time limitations vary significantly. The more time provided, the more points of interest can be perused. If limited time is provided, then selecting one or two points to query will be all that is available. Know the theme of your case prior to jury selection. Listen to the jurors. The panel ought to speak much more than the lawyer. Leading questions, other than those intended to establish a cause challenge, should be avoided because the goal is to discover the opinions of the juror. When questioning a specific juror strive to refer to the juror by title and surname, e.g. Dr. Brown or Ms. Jones. Do not address the juror as "you" or a number. Creating a rapport with jurors is most important. Enjoy voir dire. Although it is important, the process should not be stressful. Strive to be most comfortable, for those that are confident and conversational will achieve greater success than those that are mechanical and rigid. 4

11 PLAINTIFF'S PROPOSED VOIR DIRE Barbara D. Bonar I. INTRODUCTION Some litigation attorneys believe that voir dire is the most important aspect of the trial process. While the stated goal of voir dire is to impanel an impartial jury, it is also trial counsel s first opportunity to present his client, the basics of his client s case, and to impress the jury with the importance of the claims and defenses upon which they will have to make a decision. Even in federal court, where voir dire is more limited than in the state court system and the judge conducts a majority of the voir dire, many judges also accept proposed questions from counsel. This is especially true in employment discrimination cases. Unless you have served in that jury box, it is difficult to imagine how your individual background, experiences, likes and dislikes can and would affect your ability to be completely neutral in rendering a verdict. This program will take the audience through the voir dire process in a sex discrimination case, and the dynamics that predictably appear and often haunt the remainder of the trial. Enjoy. II. PLAINTIFF S PROPOSED VOIR DIRE This is a case about sexual harassment and retaliation. Jane Smith, the Plaintiff will tell you (1) that she was subjected to unwelcome sexual harassment; (2) that Auto Repair of Greater Kentucky knew about the harassment; and (3) that Auto Repair of Greater Kentucky failed to adequately address the harassment. Jane has also alleged that she was retaliated against and ultimately terminated because she complained about the harassment. I will be asking you questions today to make sure that those of you who are chosen for the jury are well-suited for this case. My questions are not designed to pry into your personal affairs or to embarrass you, but just to make sure that no one has pre-conceived ideas or notions that could affect your ability to be fair. If you are not selected that does not mean that someone doesn t like you or that there is something wrong with you. It is just part of the process. Most importantly, if I ask a question that you would prefer to answer by coming up and answering privately, please let me know so that you may do so. 5

12 III. PARTY/ ATTORNEY/ WITNESSES A. PLAINTIFF: Jane Smith Attorneys: BONAR, BUCHER AND RANKIN, PSC Barbara Bonar, Esq. B. DEFENDANT: Auto Repair of Greater Kentucky Jason Jones C. WITNESSES: Bob Doe Regina Lowe Attorneys: DINSMORE AND SHOHL,LLP Michael W. Hawkins, Esq. 1. Does anyone know any of the attorneys, parties or witnesses? 2. Does anyone know any family members of the attorneys, parties or witnesses? 3. Auto Repair The case involves Auto Repair of Greater Kentucky. a. Has anyone worked in the auto repair industry? Or had a close family member work in that industry? b. Do your experiences make it difficult for you to be impartial in a case involving the auto repair industry? IV. PREVIOUS JUROR EXPERIENCE Has anyone here ever been chosen to sit on a jury before? A. What kind of trial was it? Civil? Auto accident? Criminal? DUI? Disability (appoint a guardian/conservator)? B. Anything about your previous experience that will affect your ability to be impartial or unable to render a fair decision in this case? V. GENERAL A. For your information, this case will probably take three days. Is there anyone that may not be available for three days? By a show of hands, will you promise to alert the court officer or the judge if the room temperature becomes uncomfortable during those three days? B. Anyone have any personal issues that would make it difficult to sit on a jury or concentrate for three days? Sick family member? Sick pet? Job 6

13 interview coming up? Project at work? Anything to distract you from paying attention to the evidence. C. By a show of hands, will each of you agree to apply the law as given by the judge, even though you might not agree with the law as it is currently written? D. Civil Case vs. Criminal Case. Everyone understand the difference? No one will be going to jail as a result of the outcome of this case. Plaintiff is asking for monetary damages only, as the law allows. VI. EXPERIENCE WITH THE LEGAL PROCESS A. Have you, or have any of your family members or close friends, ever been trained or employed in any field having to do with the law or the legal system? (a court, law firm, corporate law department, etc.) B. Have you ever had a job that required you to know anything about any aspect of the law or the legal system? C. Have you or any family members or close friends ever been a party to a lawsuit? 1. Because of that suit, do you have any thoughts or concepts or feelings regarding the judicial system we use in this country? 2. What were the cases? 3. Were they civil or criminal? 4. What was the verdict? (Guilty? Civil liability?) 5. Anything about your previous experience or even being involved with a jury panel and being asked questions by the judge and lawyers that makes you feel you would rather not sit on another jury (or sit on this jury in particular?) D. Have you or any family members or close friends ever been a witness to a lawsuit? 1. Because of that suit, do you have any thoughts or concepts or feelings regarding the judicial system we use in this country? 2. What were the cases? 3. Were they civil or criminal? 4. What was the verdict? (Guilty? Civil liability?) 5. Anything about your previous experience or even being involved with a jury panel and being asked questions by the judge and 7

14 lawyers that makes you feel you would rather not sit on another jury (or sit on this jury in particular?) VII. DETAILS OF CASE A. Sexual Harassment 1. Do you believe that there is such a thing as sexual harassment on the job? 2. What do you consider sexual harassment to be? 3. Do you think someone who is claiming sexual harassment has occurred must have asked for it or provoked the harassment? 4. Do you believe males generally fantasize about sex on the job? About affairs? 5. Have you ever worked at a job where the boss or supervisor flirted with his employees? What is your opinion of that type of behavior? 6. Has anyone, including a loved one or neighbor, ever been accused of harassing a co-worker? Sexual or other types of harassment? 7. Has anyone ever brought complaints of harassment? 8. Has anyone ever been involved in an investigation into claims of harassment or discrimination of any kind? 9. Does anyone here think that anyone that complains of harassment is just a whiner? B. Retaliation 1. This case also includes an allegation of retaliation. Jane has claimed that she was fired because she complained of sexual harassment. 2. Auto Repair of Greater Kentucky claims that Jane was fired because she made mistakes in her job. 3. Has anyone ever been accused of retaliating against a co-worker? 4. Has anyone experienced retaliation in their employment? 5. Has anyone ever been involved in an investigation into claims of retaliation? 6. Does everyone believe that a decision like this termination from a job can be made for a number of reasons? 8

15 For example, when I bought my car a few years back, a number of factors went into that decision. I considered: brand, price, color, body style, and even whether or not my husband thought it was OK. Does everyone understand that a decision could be made for multiple reasons? And even if I say I bought it because I liked the color, does everyone understand that there could have been other factors that went into the decision? 7. In this case, Auto Repair of Greater Kentucky claims that Jane was fired because of mistakes she made. The evidence will show that Jane made some mistakes in her job. She was not perfect. She is not denying that. Knowing this, is everyone willing to consider other factors that could have gone into Auto Repair s decision? VIII. DAMAGES A. This is a claim for monetary damages. Does anyone have a problem awarding someone damages if the evidence warrants it? B. In addition to damages for lost wages and lost benefits, we will also be asking for damages for emotional distress. It is certainly difficult to put a value on these types of damages and we understand that, but we will be asking for damages to compensate Jane for the emotional distress that she endured. 1. Does anyone feel that they cannot award monetary damages for emotional distress? 2. If the Judge gives you an instruction that allows you to consider awarding damages for emotional distress, do you think you would be able to consider that? IX. EMPLOYMENT (These questions are more personal, so remember if you would prefer to come up and answer privately, you can.) A. How many of you are currently employed? B. How many of you are retired? C. Have you or anyone close to you ever been fired or disciplined on a job? D. Has anyone ever had a complaint against you as part of your employment? 9

16 E. Has an employer of yours ever been accused of sexual harassment or discrimination? F. Have you or a member of your family ever been treated unfairly by an employer? G. Has anyone pursued a legal action against their former employer? H. Has anyone experienced their company being sued for any employment matter? Has anyone been affected by that? I. Has anyone ever been asked for information during an internal investigation? J. Has anyone ever had to testify against an employer? K. Has anyone ever experienced any type of harassment in the workplace? L. Has anyone ever been falsely accused of wrongdoing by a manager? M. Has anyone taken special courses or training dealing with sex discrimination or sexual harassment on the job? X. MANAGEMENT A. Does anyone here own a business? B. Is anyone here an officer or director of a business? C. Is anyone here a manager, or has anyone ever been a manager? 1. If (any of above), where? 2. How long? 3. How many employees? 4. Any of you who were managers were you involved with any type of discrimination complaint? 5. If so, please describe. D. Has anyone ever been falsely accused of wrongdoing as a manager? XI. BACKGROUND A. Does anybody have a bumper sticker on their car? What does it say? 10

17 B. Does anybody listen to or watch Howard Stern? 1. How often? 2. Would you consider yourself an avid fan of the show? 3. Would you consider yourself a person who holds some of the same ideals as that show? C. Does anyone listen almost exclusively to one radio station when they are in the car? 1. What station? 2. How often? 3. Would you consider yourself a person who holds some of the same ideals as that station? 4. Would you consider yourself an avid fan of the station? D. Raise your hand if you are currently married. E. Raise your hand if you are a stay at home parent. F. Raise your hand if you are in the process of or are divorced. G. Has anyone here ever had any legal training? H. Have you or someone you know had to report a suspected crime to the police? XII. MISCELLANEOUS A. Can anyone here think of anything in your own life that reminds you of this case? B. Is there anything else you think the court should know about you, your background or your beliefs that might be relevant in this case? C. Is there anything you would prefer to discuss in private? 11

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19 DEFENDANTS' PROPOSED VOIR DIRE Michael W. Hawkins I. GENERAL A. Do any of you know the Plaintiff, Jane Smith? (If so, how well; circumstances). Do any of you know (list family members)? (If so, how well; circumstances). B. One of the Defendants in this case is Auto Repair of Greater Kentucky, which operates an auto repair store in Kentucky. Have you or any of your family members or friends ever worked for Auto Repair of Greater Kentucky? 1. Name, relation to you, position, time worked, location, supervisor. 2. Have they said anything positive or negative to you or that you have heard about Auto Repair of Greater Kentucky? 3. Do you know whether they ever had a negative experience with Auto Repair of Greater Kentucky? (details of this experience) C. The other Defendant in this case is Jason Jones. Do any of you know Mr. Jones? (If so, how well; circumstances). D. Each of the two defendants is entitled to your separate and independent judgment. Do any of you feel you cannot treat Auto Repair of Greater Kentucky and Mr. Jones individually, separately, and fairly? E. Do any of you know any of the individuals who may be called as a witness in this case? 1. Witness Witness 2. For each individual known, follow-up: i. How is it you know this individual? ii. iii. Would the fact that you know this individual make you more inclined to believe his/her testimony over that of someone else who may testify differently in this matter? Would it make you less inclined to believe his/her testimony? 13

20 F. Ms. Smith is represented by Lawyer A of the Lawyer A Law Offices in Kentucky. Do any of you know Lawyer A? 1. If so, how? 2. Have any of you ever been represented by Lawyer A? (if so, details) 3. Have any of you ever been involved in a legal matter in which Lawyer A was involved? (if so, details) G. Mr. Jones and Auto Repair of Greater Kentucky are represented by Michael Hawkins of the law firm of Dinsmore & Shohl in Cincinnati. Do any of you know Mr. Hawkins? 1. If so, how? 2. Have any of you been represented by any member of the law firm of Dinsmore & Shohl? 3. Have any of you ever been involved in a legal matter in which a lawyer at Dinsmore & Shohl was involved? (if so, details) II. EMPLOYMENT GENERALLY A. Have you or any close friend or member of your family sued an employer or former employer? If so, 1. What was the nature of the law suit? 2. What was the result of the suit? 3. If resolved at trial, awarded money? How much? B. Are you or any close friend or member of your family a member of a union? If so, 1. What union? 2. For how long? 3. Did (you/they) hold any committee or officer positions in the union? C. Have you or any close friend or member of your family supervised employees? If so, 1. What position? 14

21 2. For how long? 3. How many employees did you supervise? D. Have you or any close friend or member of your family been fired or laid off from a job? If so, 1. What was the job? 2. Why were you fired or laid off? 3. Who was your employer? 4. How long had (you/your friend/your relative) been employed? 5. Did (you/your friend/your relative) begin any grievance or lawsuit against your employer? (if so, what was the result?) 6. Do any of you have a problem with a company instituting a layoff if it feels it is required by economic conditions? E. Are any of you currently unemployed? If so, 1. How long? 2. Is it because of a layoff? F. Do you, or does a close friend or member of your family, have special knowledge or training regarding personnel or human resource policies? If so, explain. G. Have you or a close friend or member of your family ever worked in the personnel or human resources department of a company? III. DISCRIMINATION/SEXUAL HARASSMENT A. This case will likely involve explicit sexual language that some of you might find offensive. Do any of you feel you could not sit comfortably and be able to hear clearly the facts and the evidence under these circumstances? B. If you hear explicit sexual terms spoken by Ms. Smith, Mr. Jones, other witnesses or even the lawyers, do you feel you can do so without being biased against the person who spoke those words? C. Which of the following would you find objectionable in a workplace context? 1. Sexual jokes or pictures? 2. Sexual remarks or teasing? 15

22 3. Cursing? 4. Sexual gestures? 5. Propositions for sex? 6. Physical touching? D. Have you or any close friend or member of your family been sexually harassed on the job? If so, 1. What did the harassment involve? 2. Did (you/they) complain about the harassment? 3. What was the result of the complaint? 4. Did the employer have in place a sexual harassment policy and complaint procedure? Did (you/they) follow it? 5. Do you feel that experience will affect your ability to be impartial in this case? E. Have you or a close friend or member of your family been retaliated against in any way by an employer? If so, 1. What was the nature of the retaliation? 2. Why did (you/they) believe it was retaliation? 3. Did (you/they) complain or file a grievance about the retaliation? 4. What was the result of the complaint or grievance? 5. Do you feel that experience will affect your ability to be impartial in this case? IV. JUROR EXPERIENCE/TRIAL EXPERIENCE A. Have you or anyone close to you ever been a plaintiff or filed a lawsuit? 1. If so, what was it about? 2. How did it turn out? B. Have any of you ever served as a juror in a lawsuit before today? 1. If so, what kind of lawsuit? 2. What happened with that case? 16

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