A Sexual Harassment Rating Scale for Emotional Distress
Lees-Haley, Paul R., Williams, Christopher W., Defense Counsel Journal
WHILE the number of sexual harassment lawsuits is increasing, a consensus regarding what behavior constitutes that harassment is yet to be achieved. Inasmuch as perception plays a pivotal role in judgments of sexual harassment, how people view social-sexual behavior is an important topic of social science inquiry, with findings having important implications for sexual harassment litigation.
Research findings are generally equivocal as to whether certain forms of sex-related conduct are perceived as sexual harassment.(1)- Uncertainty of judgment is especially true for "less severe" forms of behavior.(2) Are suggestive glances from a co-worker or a supervisor's sexual joking, for example, as likely to be considered sexual harassment as are promises of a salary increase or job promotion in exchange for sexual favors? What yardstick do triers of fact use to determine not only whether people have experienced sexual harassment, but also the extent of emotional distress injuries sustained and the amount of financial compensation to which plaintiffs are entitled? Existing research does not fully inform the courts.
New rating scale
To assist triers of fact in sexual harassment cases, we developed a Sexual Harassment Rating Scale.(3) Sexual harassment was measured as the relative distress perceived in the various behaviors comprising sexual harassment and how this distress compared to other nonsexual stressors. The emotional distress of unwanted touching from a supervisor, for example, was compared to the distress of receiving unwanted love letters from a co-worker. These behaviors, in turn, were compared to nonsexual stressors, such as getting a divorce, having an argument with a close friend, and the like.
We argued that the more distressing a sex-related behavior, and the more comparable the distress to other nonsexual stressors, the more certain would be triers of fact that sexual harassment had occurred. Our intent was not to establish the behavioral threshold of sexual harassment but to provide relative rankings of various social-sexual behaviors from which triers of fact could make informed judgments.
Reasonable woman standard
It is helpful to establish how emotional distress varies with different kinds of sex-related behavior. Many sexual harassment lawsuits turn on the extent of emotional distress injuries suffered by victims because of conduct by alleged perpetrators. While several factors contribute to the emotional distress of sexual harassment, such as the intensity and duration of the unwanted activity, the consequences of filing a formal complaint to authorities,' and so on, assessing the emotionally distressing properties of the activity itself should be part of the judicial process. This is important because courts need to determine whether the quality of the alleged conduct in particular complaints is deemed sexual harassment by reasonable people.
The courts are wrestling with the notion of what reasonable people consider sexually harassing behavior in the workplace and elsewhere. In adopting a reasonable woman standard, for example, the Ninth Circuit relied partly on social science research showing that men and women differ in their perceptions of what constitutes sexually harassing behavior.(5) The court concluded that because women are typically the targets of unwanted social-sexual behavior, their perceptions and not those of men should be used in judging harassment. To shield employers from the "idiosyneratic concerns of the rare hyper-sensitive employee," the court held that a prima facie case of hostile environment sexual harassment is stated when a female employee alleges conduct that a reasonable women would find sufficiently severe to alter the conditions of employment.
The behavioral science research referred to by the Ninth Circuit has found that women define the kinds of behaviors that are sexual harassment more broadly than men. …