Severe or Pervasive: An Analysis of Who, What, and Where Matters When Determining Sexual Harassment

Article excerpt

I. Introduction ...................356

II. DATA: THE MSPB SURVEY ...................358

III. The Victim's Gender Matters ...................361

A. Background ...................361

B. Circuit Split ...................362

C. Scholarly Debate ...................365

1. Social Science Support ...................365

2. Legal literature Split ...................367

D. The MSPB Survey Supports Adoption of the Reasonable Woman Standard ...................369

1. The MSPB Literature ...................369

2. Theory and Empirical Specification ...................371

3. Results ...................374

IV. The Supervisor Status of the Harasser Matters ...................376

A. Background ...................376

B. Theory ...................377

C. The MSPB Survey Supports Adoption of the Supervisor Distinction ...................379

1. Theory and Empirical Specification ...................379

2. Results ...................380

V. Integration of Sexes in the Workplace Matters ...................382

A. Brief Overview and Theory ...................382

B. The MSPB Survey Supports Considering the Integration of the Workplace ...................384

1. Theory and Empirical Specification ...................384

2. Results ...................385

VI. How t? Clear the Way: Solution and Integration of Standards ...................391

VII. Conclusion ...................395

I. Introduction

In the middle of Herman Cain's campaign for the 2012 U.S. Republican Party presidential nomination, multiple women who were once Cain's coworkers came forward with allegations of sexual harassment. Cain immediately deemed the allegations "totally baseless and totally false."1 However, after continued questioning about whether his previous actions were inappropriate, Cain responded, "In my opinion no, but as you would imagine, it's in the eye of the person who thinks that maybe I crossed the line."2 Unfortunately, Cain's vague and evasive response is evocative of current sexual harassment law, which generally lacks clarity and is often dependent on individual perceptions.

The Equal Employment Opportunity Commission ("EEOC") did not recognize sexual harassment in the workplace as a violation of Title VII of the Civil Rights Act of 1964 until 1980, and the Supreme Court did not define sexual harassment until Meritor Savings Bank v. Vinson in 1986.3 In Meritor, the Court defined actionable sexual harassment as harassment that "must be sufficiently severe or pervasive 'to alter the conditions of [the victim's] employment and create an abusive working environment.' "4 Today, the Court recognizes two forms of sexual harassment: quid pro quo and hostile work environment.5 Quid pro quo harassment occurs when a supervisor demands sexual favors from an employee in return for advancement or continued employment in the workplace.6 Hostile work environment harassment occurs when workplace harassment is so severe or pervasive that it alters the conditions of employment.7 This latter form of harassment is incredibly difficult for most courts to define, as they must determine what actions meet the vague standard of "severe or pervasive."8 The task is especially difficult because individuals have different perceptions of what behaviors are severe enough to constitute harassment.

In order to clarify the definition of hostile work environment harassment, legal scholars and judges have developed many standards to assist courts in determining what is severe or pervasive. Certain studies suggest that what is severe or pervasive should be determined by a reasonable woman standard, instead of a reasonable person standard, because women have different perceptions of and reactions to sexual harassment.9 To date, only the Ninth and Third Circuits have adopted this theory, and the Supreme Court has not resolved this circuit split.10 A more recent theory suggests that courts should consider the source of the harassment when determining severity because supervisor harassment is generally perceived to be more severe than coworker harassment. …