January 13, 2015 Articles

Batson Challenges at Work: Jury Selection in the Realm of Employment Law

The Golden State's law is generally more friendly to employees than federal law is.

Ikedi O. Onyemaobim – January 13, 2015

The jury trial is a central pillar throughout American jurisprudence. However, picking the jury is often half the battle. Attorneys take care to select jurors who are open and willing to hear the law and evidence of a case and come to a decision accordingly. For that reason, before trial begins, attorneys for plaintiffs and defendants go through the voir dire process, picking, eliminating, and finalizing the body of jurors who hold the fate of the case in their hands.

Under the Federal Rules of Civil Procedure, each party to civil action has the right to use three peremptory challenges during voir dire to exclude potential jurors from jury selection. Fed. R. Civ. P. 47(b). The U.S. Supreme Court decision in Swain v. Alabama best illustrates the importance and controversial nature of the peremptory strike. Swain v. Alabama, 380 U.S. 202, 212–13 (1965). There, the Court recognized that the peremptory strike “is one exercised without a reason stated, without inquiry and without being subjected to the court’s control.” By its very nature, the peremptory challenge requires attorneys to make subjective assessments of potential jurors based on factors including but not limited to gender, ethnicity, age, and employment. While there is no guarantee that the perceptions attorneys draw on during voir dire are wholly accurate, the fact remains that attorneys must make these subjective assessments to exercise peremptory strikes.

Finding its origin in the 1986 Supreme Court decision in Batson v. Kentucky, the “Batson challenge” allows an attorney in a criminal proceeding to challenge the prosecutor’s right to peremptorily strike a potential juror before trial without stating a reason. Batson v. Kentucky, 476 U.S. 79 (1986). The Supreme Court later applied the principle in Edmonson v. Leesville Concrete Co., to allow civil litigants the opportunity to successfully execute Batsonchallenges. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). An attorney may make a Batson challenge on grounds that opposing counsel used a peremptory strike to exclude a potential juror on the basis of race, sex, or ethnicity. See id.see also J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) (holding that discriminating against a juror “on the basis of gender” is prohibited in the same manner in which racial discrimination is prohibited). Additionally, it is not necessary for a litigant to share the same race or ethnicity with the stricken jurors. Powers v. Ohio, 499 U.S. 400, 402 (1991).

To execute a successful Batson challenge, the challenging attorney must establish a prima facie case of purposeful discrimination by demonstrating that his or her client is a member of a cognizable group, Castaneda v. Partida, 430 U.S. 482, 494 (1977); that the attorney exercising the peremptory strike did so in an attempt to eliminate from the venire jurors belonging to that cognizable group, Batson, 476 U.S. at 96; and that the facts and “any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.”

Once the challenging party puts forth a prima facie showing of purposeful discrimination, the burden shifts to the other party to proffer a neutral explanation for exercising its peremptory strike. For example, some states allow employment-based neutral explanations. Burkett v. State, 497 S.E.2d 807 (Ga. Ct. App. 1998). In those instances, a potential juror’s lack of work background, or unemployment, may suffice to frustrate an otherwise successful Batsonchallenge to a peremptory strike. See Johnson v. State, 470 S.E.2d 637 (Ga. 1996); Ridley v. State, 510 S.E.2d 113 (Ga. Ct. App. 1998).

As Edmonson established, an impermissible bias in exercising peremptory strikes may be present in both criminal and civil proceedings. See Edmonson, 500 U.S. at 618–19. While it is difficult to succeed with a Batson challenges, several holdings offer suggestions that may aid a challenging attorney in increasing the likelihood of success with Batson challenges. For example, where opposing counsel strikes prospective jurors on the basis of their demeanor, or where the record provides insufficient support for the justifications provided by opposing counsel in exercising its peremptory strikes, parties have experienced more success on Batson challenges. See, e.g.Snyder v. Louisiana, 552 U.S. 472, 479 (2008) (refusing to accept the prosecutor’s assertion that an African American juror was nervous during voir dire as sufficient justification for exercising a peremptory strike).

An excellent illustration of the exercise of peremptory challenges within the civil context can be found in Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 2008)—a Texas Supreme Court employment-discrimination decision. There, the court found that the justifications the defendant company proffered for exercising its peremptory strikes on minority prospective jurors were both vague and lacking in factual support from the record. The defendant, Fisk Electric Co., used all of its peremptory strikes to exclude one Asian American and five African American prospective jurors from the jury pool. The defense counsel’s justification for exercising one of its peremptory strikes was founded in the belief that the prospective juror’s nonverbal demeanor was a direct indication of the fact that he favored punitive damages. Ultimately, because the defendant company “merely stat[ed] that a juror nonverbally ‘reacted,’” as opposed to providing a detailed description of the juror’s alleged demeanor, the court held that the reason defense counsel offered was pretextual for lack of support in the record and, thus, was “insufficient to justify a peremptory strike.”

Naturally, successful Batson challenges are not limited to circumstances where attorneys strike prospective jurors for their alleged demeanor or for proffered justifications that the record does not support. Alternatively, successful techniques for demonstrating opposing counsel’s bias include comparing peremptorily stricken prospective jurors with those jurors who have been selected for the finalized jury panel, and demonstrating, for example, that the percentage of strikes against minority prospective jurors surpasses the proportion of minority jurors on the venire. See, e.g.Miller-El v. Dretke, 545 U.S. 231, 241 (2005) (finding racial discrimination in jury selection where prosecutors used peremptory strikes to remove 91 percent of African American prospective jurors from the venire).

Where the selection of the jury is often vital to the outcome of a case, employing effective strategies for eliminating jurors is essential. Nonetheless, this cannot interfere with the fundamental notions of equality that underline the American legal system. And so, courts have implemented safeguards to steer eager attorneys toward a favorable jury, while preserving the legal system in the wake of a trial.


Keywords: litigation, employment, labor relations, voir dire, jury selection, Batson challenge


Ikedi O. Onyemaobim is a 2015 J.D. candidate at Pepperdine University School of Law.


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