The judge restored to the jury two of the women whom the defense had challenged, and both sides thereafter announced themselves content with the jury's makeup. After five days of trial, the jury returned verdicts for all defendants. The plaintiff now urges as her sole ground on appeal that the jury was unconstitutionally purged of women. We decide that the plaintiff waived unspoken objections, if any, that she had to the composition of the jury, and we affirm the judgments. The nature of the case on trial was an action claiming unlawful discharge by the University of Massachusetts Medical School in retaliation for the plaintiff having made a complaint that her department chairmen had created a sexually hostile working environment.
Gender is such a discrete group.
We need not cover all the ground of the Rodriguez opinion. By way of summary, after the judge recognizes a prima facie pattern of group exclusion, the burden shifts to the party exercising the peremptory challenge to provide a legitimate reason for that challenge, one that is personal to the juror rather than based on the juror's group affiliation. The judge then makes a finding whether the challenge was legitimate or a pretext for group exclusion. Civil litigants, as well as parties in criminal cases, are entitled to a jury that has not been unfairly skewed. 16 Mass. App.