Academic journal article
By Thacker, Rebecca A.; Gohmann, Stephen F.
Public Personnel Management , Vol. 22, No. 3
The appropriate legal standard for determining the behaviors that constitute hostile working environment sexual harassment has not yet been clearly delineated. Confusion arises because the behaviors that typically represent examples of hostile working environment are subject to individual definitions; for example, sexual joking, touching and patting, may be considered unwelcome sexual attention to some, but not to others. The courts must obviously be very careful in rendering decisions concerning the definition of hostile environment harassment behaviors, as the danger exists that frivolous complaints will be encouraged, further straining an already overcrowded court system. Thus, the question of a reasonable definition of that which constitutes hostile work environment is an important one.
Previous standards for judgment have rested upon the notion of "reasonableness", i.e., is the individual's claim of hostile environment harassment one with which a "reasonable" person could concur? Two recent court decisions have refined the "reasonableness" standard by suggesting that the standard is different for males and females. In Ellison v. Brady (54 FEP Cases 1347, 1991), the court refined the "reasonable person" standard for deciding whether hostile environment harassment is indeed sexually harassing, by relying upon a "reasonable woman" standard. The reasonable woman standard is an attempt to determine a representative woman's interpretation of sexual behaviors as the standard by which courts can decide whether a sexual harassment claim is frivolous or trivial. As such, the reasonable woman standard is a departure from previous, gender-neutral standards in which males' and females' definitions are treated similarly, and implies that males and females differ in their perceptions of that which constitutes sexual harassment.
The issue in Robinson v. Jacksonville Shipyards (54 FEP Cases 83, 1988) again relied upon a "reasonable woman" standard, but revolved around the question of whether employers could require mental examination of targets who claim that as a result of offensive, hostile working environment harassment, their psychological well-being has been affected. The court rules that requiring mental examinations would set a dangerous precedent for hostile environment cases. Instead the court relied upon the reasonable woman standard as the appropriate criterion for deciding whether the plaintiff had a legitimate claim about the sexually harassing nature of pornographic material in the workplace. If a reasonable woman would find pornographic material and language offensive, then the plaintiff should not be required to prove psychological trauma through a mental examination.
While both the Ellison and the Robinson courts articulated a standard of systematic differences between the genders, empirical proof that such a standard is appropriate is necessary. The purpose of this paper is to explore, first of all, the notion that gender-based differences in interpretation of sexually harassing behaviors do, in fact, exist. Secondly, the paper explores the notion that the reasonable person standard may also be too broad for determining the effects of hostile work environment harassment, and that the psychological and emotional effects of hostile work environment harassment will also differ systematically by gender. Data from a major survey of sexual harassment among public employees in the Federal workplace are analyzed, and implications for organizational policy are discussed.
Why a Standard of Reasonableness is Necessary
In its landmark sexual harassment decision (Meritor Savings Bank v. Vinson, 106 S.Ct. 2399, 1986), the Supreme Court set out two definitions of sexual harassment: 1) demands for sexual favors in return for employment benefits such as promotions or pay raises, called "quid pro quo" harassment; and, 2) behaviors that create an offensive or hostile working environment (e.g., touching, sexual comments and jokes, sexually-oriented pictures), called hostile working environment harassment. …