Employees Have the Advantage At Trial in Getting to Speak First and Last

In jury selection of an employment discrimination case, the employer addresses the potential jury pool after it has already heard from the employee's lawyer. When the employee's lawyer has done an effective voir dire (i.e., jury selection), the employer might start to see the panel members begin to express verbal and nonverbal cues that the jurors are beginning to form opinions about the case that would tend to favor the employee. The plaintiff employee, as the party bearing the burden of proof, always has a real advantage in getting to talk first and last at every stage of a trial. While the trial judge will undoubtedly advise the jury that nothing the lawyers say is evidence, it is important to remind the jury to refrain from from forming their opinions until all of the evidence is in (read: the employer has a chance to put its case on). I've even some some defense lawyers go so far as to ask potential jurors at the beginning of jury selection if, having heard the plaintiff employee's voir dire, was anyone leaning just a little toward thinking the plaintiff might have a case. That is usually following by some example to show that every story has two sides and the jury can't really decide what happened until they have heard all of the evidence. The importance of ensuring that jurors are reminded to keep an open mind until they have heard all of the evidence is exemplified in two posts written by two of my colleagues about the same case. On September 8, 2011, the EEOC announced that it filed a lawsuit against Walgreens for allegedly violating the Americans with Disabilities Act when it fired an employee for eating chips to stop a hypoglycemic attack. The EEOC summarized the facts as follows: Josefina Hernandez, a cashier at Walgreens' South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar). Hernandez had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty. Jon Hyman, who represents employers, defended Walgreen's actions on his blog the Ohio Employer Law Blog. He wrote that: You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first. If customers see an employee consuming merchandise without paying first, they might think it's allowed by the store, which makes shoplifting and loss prevention that much more difficult for the employer to control. After reading Jon's post, you might be inclined to side with the employer and believe that the EEOC overstepped its bounds by suggesting that Walgreens had to, as a reasonable accommodation, excuse one of its personal conduct rules. Shortly after Jon's post was published, Chris McKinney (a fellow Texas lawyer) who represents employees, suggested that Jon's defense of Walgreens was as good as could be done if not a little over the top in accusing Ms. Hernandez of stealing the chips and further suggesting the company's defense was factually false. Chris had the following closing argument on Walgreen's actions: At trial, Walgreens will presumably say that Ms. Hernandez had any number of alternative actions available to her, including: 1) leaving her station to get some food from her purse or locker (for which she would undoubtedly be fired; or 2) risk going into diabetic shock. From the company's point of view, choice 2 is obviously the preferable solution. No one can accurately predict how this case will ultimately conclude (although I'd bet a large sum of money that like most civil cases –and most brought by the EEOC –it will end with a settlement) but it a good reminder that every case has at least two sides and the jury must be reminded not to forms its opinions until it has heard all of the evidence. Follow me on Twitter @RussellCawyer.

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