ABA Journal Blawg 100!
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Archive for March, 2010
Motherhood and Employment: Pregnancy Discrimination in the Workplace
Wal-Mart just settled a gender discrimination complaint by agreeing to pay about $12M in back wages and damages and to begin hiring women for warehouse jobs. Wal-Mart has also been involved in another form of gender discrimination lawsuit: pregnancy discrimination. And they are not alone. Despite the declining birthrate, pregnancy discrimination complaints are one of the fastest-growing types of employment discrimination charges filed with the Equal Employment Opportunity Commission (EEOC). It’s a trend that is not expected to end soon.
The Pregnancy Discrimination Act protects women from discrimination in hiring, firing, and returning to work post-parental-leave. In 2008, the National Partnership for Women and Families (NPWF) published a report examining reasons behind the skyrocketing number of pregnancy discrimination lawsuits between 1996 and 2005.
The main findings in this thirty year review of the Pregnancy Discrimination Act impact were these:
- The growth in pregnancy discrimination claims during this time period was fueled largely by charges filed by women of color. (Claims overall increased by 25% but claims by women of color increased by 76%.)
- Whether a woman was employed in a female-dominated industry or a male-dominated industry made no difference in filing of pregnancy discrimination complaints. (So female-dominated industries do not do a better job of not discriminating against pregnant women.)
- Pregnancy discrimination charges increased in close to ¾ of states with 38 states reporting an increase in charges. (Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Georgia, Indiana, Puerto Rico, and California were the top ten states in terms of the filing of pregnancy discrimination claims.)
- There seems to be no single cause for the rise in pregnancy discrimination suits. The NPWF study hypothesizes that age-old stereotypes about gender combined with increasing numbers of women in the workforce are key reasons for rising numbers.
What this may mean for litigators is that it is difficult to draw a clear line between pregnancy and employment discrimination. But it is still possible. Educating jurors about the law will be essential. The more jurors understand about the protections employees have, the more they will be able to understand how your client was discriminated against. A graphic depiction of the law with indications of in what ways and at what times your client was discriminated against will likely be useful for jurors.
Effective litigation advocacy may mean focusing on the story of how discrimination happened in this specific scenario, but also concentrating on filling in a timeline with concrete and tangible events. That means things jurors can see and hear. For example:
- The employer wrote this memo.
- The supervisor said this.
- This happened as the client became visibly pregnant.
- The client returned to work and her job was gone.
Ambiguous ties to discriminatory behavior will be filled in by the jurors (“I know why they did this at that point”) if they have information on details about the law and behavioral evidence (i.e., things they can ‘see’ and ‘hear’) about the employer. Testimony that explains why the laws and policies are important to society, not merely the pregnant woman, and why these policies and laws were enacted, will be important if Plaintiff is to overcome resistance by some. Jurors who feel that policies of this sort put an undue burden on companies will need to be cajoled (by Plaintiff) or enflamed (by Defendant). After all, how much accommodation is enough?
What jurors want to hear in order to support the Plaintiff is a pattern of behavior, or documentation of conduct that is not merely circumstantial. What they will want to hear from Defendants if they are to acquit is that the employer has more than empty policies, that there is a demonstrable commitment to fulfilling their obligations under the law, and that the plaintiffs are unreasonable, whining, and opportunistic. What we can’t know without more evidence than the Wal-Mart settlement is what affect the straining economy is going to have on juror perceptions.
And now the second hundred…
It seems hard to believe but over the last 7 months we have published 100 blog entries. We have gone from having no blog to having readership in every state and about 75 countries.
We started the blog for a couple of reasons. We wanted people to come look at our website, and frankly to consider us when they had need for the kind of services we provide. That has worked out well. Under the old rules of ‘how to grow your business’ you advertised like crazy alluding to your ability, and kept your actual knowledge under cover. The new business universe has changed drastically, and for the better. Now the strategy is much more one of ‘We will tell you what we do and a lot of what we know—and let you decide whether it fits your needs’. To us that feels like a better model.
We wanted to participate in what we were seeing as a lively online community of smart and helpful commentators on the leading edge of knowledge regarding society and the law. Bloggers like Anne Reed, The Situationist, Mark Bennett, Victoria Pynchon, Thaddeus Hoffmeister, Stephanie West Allen, Timothy Hughes and ‘Gideon’ have distinctly different voices, but have all made terrific contributions to our knowledge by sharing their perspectives. We like sharing ideas with smart and thoughtful people. And we wanted that discussion to include you.
There is no end of potential blogs we can post—we are confronted with new research, new trial strategies, and new takes on juror decision-making virtually every day. But what makes it a blog you want to read?
It would be helpful to hear from you on what topics struck you as most useful, or readable, or entertaining, or important. If there are topics you wish we would cover or develop more fully, let us know that, too.
It has been a challenging but fun First 100. Let us know where you want the next 100 to go, and we’ll see you there.
Doug Keene and Rita Handrich
Surprise! How your brain reacts to the unexpected
Think of the last time someone did something that surprised you. You likely have a vivid recollection because we tend to remember things that are out of the ordinary. Scientists have actually been able to prove this using EEG’s to measure surprised brains and thereby predict memory formation. In brief, surprise someone and they are likely to process that event differently—and remember it.
Not at all surprisingly, this phenomenon is being talked about by lawyers and finding its way into court. Miller-McCune has a lengthy piece on how the brains of psychopaths are simply made differently and accompanying efforts to decrease their culpability for crimes committed. Jurors are shown how the brains of psychopaths are different in appearance from ‘normal’ brains. Kent Kiehl (a researcher featured prominently in the Miller-McCune article) finds it absurd to execute convicted murderers who have malfunctioning brains. And attorneys are asking him to perform fMRI’s on their clients’ brains in hopes of having the death penalty taken off the table by prosecutors. There are some fascinating insights into how this actually works in court in the article—it’s worth a read.
Mark Bennett (a criminal defense attorney) at Defending People blog writes about the new ‘reptile’ theory which focuses on making jurors afraid so they want to be safer. Bennett suggests you instead surprise jurors by making them laugh and take them out of their reptile brain and into their simian brains. Sometimes your case simply doesn’t lend itself to humor but the ‘surprise’ element in this example is the important thing. Surprise your jurors with a new way of thinking about a situation that isn’t driven by fear. It’s a powerful inoculation.
Another way to surprise jurors is to surprise their stereotypes. RaceWire blog has a good example of this form of surprise in their post on how we talk about police brutality when the cops aren’t white. We think of police brutality as a manifestation of racism. The cops in this story were acquitted and it was not thought to be about race. That makes no sense to us because of course it was about race—the point is to surprise jurors with stereotype-defying information and get them to think differently.
Surprise can be a powerful tool for litigation advocacy. Jurors remember things that are surprising. Hear the witness say the surprising thing. Tilt your head. Appear quizzical. “Really? How does that work?” Cue the jurors that this is surprising information. They’ll remember it.
Simple Jury Persuasion: Make Your Expert Optimally Persuasive
You don’t want jurors thinking your expert is a “hired gun” or otherwise nurturing thoughts to decrease the effectiveness of expert’s testimony. Yet, it commonly happens. An old literature review (Devine et al., 2001) and a newer research study (Boudreau and McCubbins, 2009) shed light on best practices to avoid juror dismissal of your expert’s testimony.
Devine et al. (2001) describe the 1997 Capital Jury Project’s findings on juror reactions to three kinds of witnesses: professional experts, lay experts and families and friends of the defendant.
Perhaps not surprisingly, professional experts were most likely to be seen negatively, as often damaging the case for their side, and as having little credibility.
Those experts that were seen positively did two specific things: 1) they integrated their testimony with the specific facts of the case and 2) they explained how their general points applied to the case at hand. In other words, they stopped being expert witnesses, and became expert teachers. The jurors stopped focusing on whether they were a hired gun, and started focusing on what was being provided to them for their use in solving a problem.
Devine et al. (2001) conclude that expert witness testimony should have “novel and useful” information for the jury and should be tailored to the specific case being tried. They caution that jurors do not simply accept the testimony of expert witnesses as factual—but rather that jurors tend to scrutinize experts and even view them somewhat cynically.
Boudreau and McCubbins (2009) address the thorny issue of competing expert testimony. What they find is that competing/conflicting expert testimony is very difficult for “unsophisticated subjects” (aka jurors) to sort through and then make accurate decisions. And the more difficult the facts, the worse decisions are made. (This is not generally good.) But when experts are told to testify with the threat of fact verification and the competing experts exchange ideas as to why their interpretation should be seen as accurate, “unsophisticated subjects” do just as well at sorting through the testimony as “sophisticated subjects”.
We often hear mock jurors complaining about dueling experts. They don’t like it. They don’t like feeling ‘talked down to’ and ‘not very bright’ because they can’t ascertain the truth between opposing experts in fields in which the jurors have little to no expertise/education/experience. Devine et al. shares the descriptive reality for jurors while Boudreau and McCubbins tell us what to do about it.
- Structure your expert’s testimony around the facts of the case. Have the expert explain their testimony in relation to the case facts.
- On cross-examination, ask them to explain how their explanation is more correct than the other side’s expert testimony.
- Make sure your expert’s testimony is factually accurate and examine the opposing witness’ testimony for factual accuracy. Showing jurors how a portion of an expert’s testimony is self-serving will kick in their tendency to doubt the expert’s credibility in total.
And as ridiculous as it might sound, during preparation emphasize to the witness the need to be nice. Expert witnesses are the worst when it comes to arrogance and gamesmanship. Getting them to be friendly, useful, and charmingly geeky is often quite a challenge.
Boudreau, C. and McCubbins, M. (2009). Competition in the Courtroom: When does expert testimony improve jurors’ decisions? Download from SSRN.
Devine, D., Clayton, L., Dunford, B., Seying, R. and Pryce, J. (2001). Jury Decision Making: 45 years of empirical research on deliberating groups. Psychology, Public Policy and Law, 7(3), 622-727.
Being a good bragger (but stopping short of narcissism)
It’s tough to toot your own horn without seeming arrogant and narcissistic. We don’t all have the charm to pull that off (although Mac Davis did). We know from the research that narcissists may make a good first impression but their ‘charm’ quickly wears off once we truly see them for who they are.Yet, you want to be able to present your achievements and let others know what you have accomplished.
So how can you brag without being written off as a blowhard narcissist? We have researchers to thank for giving us a recipe. The key to avoid looking like a narcissist is to provoke a question from your audience—like “how do you win every case you ever take on?” or “How do you manage to look forever young?” or something predictable like that. The key is context.
Here’s the researcher’s recipe for effective boasting:
- You want your conversation partner to bring up the topic. If they don’t, you can raise the topic but they need to ask you a question.
- If they ask a question, you can then happily boast without being seen as a braggart. If they don’t question and you offer your boast anyway, you will likely not be seen positively.
So you can market your strengths and accomplishments to others. You just need to get them to ask questions!
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