How Jurors Evaluate the Fairness of an Employer’s Actions

Fairness is a fundamental human instinct.  For example, whatever the rights and wrongs of an employee’s firing, the manner in which the employee is fired may seem unfair, as few things matter more to people than fairness.  While people differ over what counts as a right outcome, they can usually agree on what makes for a fair process.  

For these reasons, the plaintiff’s battle cry in employment litigation may be “that’s not fair.”  Plaintiffs often build their cases around the concept of fairness and easily capitalize on jurors’ predisposition to impose fairness upon situations.  A majority of jurors probably believe that some things are wrong, even if they are legal.  For example, laying off a long-time employee when that employee’s skills are no longer needed.  Many jurors realize that such a layoff is perfectly legal, but feel it is absolutely unfair.  Given a choice, only half of jurors say they can set such feelings aside and focus on the “letter of the law.”  Thus, attorneys should support their legal positions with common sense fairness arguments.  A company argument that it “had a legal right to terminate him under these circumstances” may not “carry the day” with jurors.  Some jurors believe that employees are the “little guys” who need to be taken care of, and the jurors need to send a message to corporate America in order to engender change.

Thus, many jurors have a tendency to want to give employees the benefit of the doubt in disputes with employers.  Asked whom they would tend to believe in a dispute between an employee and his or her employer, many jurors say they would believe the employee.  Some studies reveal that less than half of the jurors polled nationwide did not believe that when employees are terminated, they usually deserve it.  It is easier for jurors to relate to the employee than the employer, and thus plaintiffs carry this advantage with them into the courtroom.  

In discrimination cases, many jurors believe they themselves have witnessed and/or experienced discrimination in the workplace.  In spite of legal instructions in the standards required by the law that  defines discrimination, many jurors do not have to see blatant and overt discrimination in order to find in favor of the plaintiff.  They may believe that discrimination has become more subtle and want to remedy this situation despite the legal standards.

Thus, it is crucial for employers to have appropriate policies and procedures as jurors expect these standards to be met, and jurors may expect that the policies and procedures are followed without exception.  To jurors, inconsistency or failure to apply these policies and procedures seems unfair.  Many jurors work in settings such as in government and in unions where there are seniority rules and strict policies and procedures in hiring, promotion and termination.  

In most employment lawsuits, there is an individual plaintiff going up against a corporate defendant.  The fact that the corporation is not a human compounds the immediate feeling of unfairness.  In many mock trial settings, the jurors express the desire to make a statement to the corporate defendant or to demand that the corporate defendant implement certain policies, procedures or training.  A majority of jurors are much more open to the defense position if the defense addresses the issue of, and juror concerns about, fairness. 

To address fairness, corporations should have clear guidelines, policies and training.  Sometimes a plaintiff never complains or complains only after losing his or her job.  Therefore, all of the opportunities for complaints should be explained to the jury so that they understand the option a plaintiff had for complaining earlier.  

Once the employer is aware of complaints or allegations, employers must show that immediate steps were taken in line with policies and procedures.  Jurors often are interested in understanding what type of investigation was conducted and what the findings were.  There is a need to understand what response was taken in light of those findings.  Many jury consultants recommend showing that the plaintiff’s contentions ultimately disadvantage other employees, plaintiff’s co-workers, and not just the corporate employer.  

Pointing out the steps the company has taken goes a long way to show that it is a fair company dedicated to treating all of its employees with respect and fairness, as this approach is more likely to be perceived as a “winner” in the eyes of the jury. 

This article is part of our May 2025 Newsletter. 

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