© 2007 Morrison & Foerster LLP All Rights Reserved Bias From A Juror’s Perspective (revisited) Rick Bergstrom Morrison & Foerster LLP January 26, 2007

Overview Discrimination Sexual Harassment Retaliation/Whistleblower

Example re: Punitive Damages

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?

White and minority employees are treated equally in the workplace. Agree or Disagree?

The organization is negligent if it does not properly document an employee’s performance problems. Yes or No?

Sexual Harassment

Sexual harassment is a common occurrence in the workplace. Yes or No?

Do women report sexual harassment to their employers if it has occurred? 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 incident. Yes or No?

Most organizations say they strictly enforce their policies regarding harassment in the workplace, but they really don’t. Agree or Disagree?

Most organizations investigate allegations against employees more thoroughly than those made against a supervisor. Agree or Disagree?

A company should terminate a supervisor who physically touches an employee in a sexual manner? Yes or No?

Any supervisor who makes reference to an employee about oral sex should be fired. Yes or No?

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

It is common for a supervisor to retaliate against an employee who participates in an investigation of claims of unlawful conduct. Agree or Disagree?

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