Discrimination cases are difficult. They are more difficult than many other types of cases, because there is an intrinsic bias against discrimination claimants. As Judge Kopf (of Hercules and the Umpire blog) said, many judges are simply skeptical about discrimination claims. We see some of the challenges in this article about successful discrimination and retaliation claims in Dallas, Texas. Eliot Shavin took one such case with five plaintiffs, four African-American and one Hispanic, against BAE Systems Land and Armaments. See Texas Lawyer report.

At the conclusion of a two week trial, the plaintiffs lost in a hung jury. The polling of the jury indicated the six person jury leaned toward finding for the employer. The employer moved for a judgment as a matter of law and lost. Trial was held in the Northern District of Texas.

After the trial, the plaintiff’s counsel apparently interviewed some of the jurors and learned there was at least one sleeper member who would not admit during voir dire to innate bias against discrimination claims. The report does not describe the nature of the sleeper jury member, but often, there are one or two jury members will not admit during voir dire that s/he refuses to believe there is still racism in this country, today. “Voir dire” is the process in which lawyers question potential jurors before the trial starts about any innate biases they may hold. The plaintiff’s lawyer, Mr. Shavin, realized he would need to conduct a more thorough voir dire at the next trial. But, after ¬†various continuances of the trial date, the plaintiffs accepted an Offer of Judgment for the five plainiffs for $1,000,000 total.

Voir dire is particularly difficult in federal court, because federal judges allow a very limited time in which to conduct voir dire. Many federal judges will not allow the individual attorneys to ask the voir dire questions. Federal judges generally ask the questions themselves. The process moves along faster, but those “sleeper” members slip through.


See Texas Lawyer report.