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Law and Human Behavior, Vol. 28, No. 1, February 2004 ((L2004)
Somefederalcourtshaveuseda reasonablewomanstandardratherthclnthetraditional
reasonableman or reasonableperson standardto determinewhetherhostileenviron-
mentsexual harassmenthas occurred.The currentresearchexaminedthe impactof
the reasonablewoman standardon federal districtcourt decisions, controllingfor
otherfactorsfound to affectsexual harassmentcourtdecisions.Resultsindicatedthat
therewas a weak relationshipbetweenwhethera casefollowed a reasonablewoman
precedent-settingcase and the likelihoodthatthe courtdecisionfavored theplaintiff:
Theimplicationsof ourfindingsfor individualsand organizationsinvolvedin sexual
harassmentclaimsare discussed.
KEY WORDS: sexual harassment; reasonable woman standard; court decisions.
INTRODUCTION
9
0147-7307/04/0200-0009/1
t 2004American Psychology-Law Society/Division 41of the American Psychology Association
10 Perry, Kulik, and Bourhis
necessary to show that the conduct seriously affected the psychological well-being of
the plaintiff. The Supreme Court addressed this conflict in Harris v. Forklift Systems,
Inc. (1993) and concluded that it was not necessary to show the hostile and abusive
environment was psychologically injurious.
Second, there has been disagreement regarding the objective reasonableness
standard that should be used to establish whether the harassment is sufficiently severe
or pervasive to constitute a hostile environment. A reasonableness standard defines
a minimum standard of behavior and imposes liability for what society perceives as
substandard conduct. The traditional legal standard used to determine culpability was
that of a reasonable man (Forell & Matthews, 2000). During the past 25 years most
courts have used more gender-neutral language, referring instead to a reasonable
person as the objective standard in hostile environment cases (Adler & Peirce, 1993;
Childers, 1993). For example, one court described its role as adopting "the perspective
of a reasonable person's reaction to a similar environment under essentially like or
similar circumstances" (Rabidue v. Osceola Refining Company, 1986, p. 620).
However, some courts questioned whether the use of a reasonable person stan-
dard was appropriate in hostile environment sexual harassment cases (Grider et al.,
1992). The earliest judicial recognition of the reasonable woman standard can be
found in the dissenting opinion of Judge Keith in Rabidue v. Osceola Refining Com-
pany (1986; Adler & Peirce, 1993). Also notable is the legal case Ellison v. Brady
(1991). Using the objective reasonable person standard, a district court dismissed
Ellison's sexual harassment complaint on summary judgment. When the case was
reviewed by the Court of Appeals, it reversed the dismissal suggesting that it was ap-
propriate to analyze harassment from the victim's (a woman's) perspective. Legally,
harassment is defined on the basis of conduct and its effects on the recipient (Riger,
1991). In cases using the reasonable woman standard, courts have concluded that
a hostile environment is created when a female plaintiff "alleges conduct that rea-
sonable woman would consider sufficiently severe or pervasive to alter conditions
of employment and create abusive working environment" (Ellison v. Brady, 1991,
p. 1346).
One justification for using a reasonable woman standard is the large body of so-
cial science research that suggests that men and women perceive harassment differ-
ently (see Blumenthal, 1998 and Rotundo, Nguyen, & Sackett, 2001 for meta-analyses
of this literature). Although some researchers have found no significant gender dif-
ferences in judgments of potentially harassing behaviors (Thomann & Wiener, 1987;
York, 1989), others have revealed that compared to men, women define sexual harass-
ment more broadly (Gutek, Morasch, & Cohen, 1983; Jones & Remland, 1992). Nar-
rative reviews of the literature (Gutek & O'Connor, 1995) and meta-analytic studies
(Blumenthal, 1998; Rotundo et al., 2001) conclude that although there are consis-
tent and significant gender differences in perceptions of sexual harassment they are
relatively small and influenced by a variety of other factors. Importantly, perceptual
differences are especially likely to be observed in hostile environment harassment
(Rotundo et al., 2001), with women being more likely to label less severe social-
sexual incidents (e.g., sexual innuendoes, sexual jokes) as harassment than men.
Legal scholars anticipated that the Supreme Court would resolve the controver-
sies surrounding the appropriate legal standard to use in hostile environment sexual
12 Perry, Kulik, and Bourhis
harassment cases when the Court agreed to hear Harris v. Forklift Systems Inc. (1993;
Johnson, 1993). However, the Supreme Court did not discuss whether a reasonable
person or a reasonable woman standard is appropriate (Currie v. Kowalewski, 1994),
nor did it provide a rationale for future standard choices (Abrams, 1995; Gutek &
O'Connor, 1995; Paetzold & O'Leary-Kelly, 1996). In fact, the Court noted that it
"need not answer... all the potential questions" raised by the case (Harris v. Fork-
lift Systems Inc., 1993, p. 228) and devoted most of its analysis to the question of
whether plaintiffs must demonstrate "serious psychological injury" to win their cases
(Abrams, 1995). As a result, there continues to be ambiguity about the legal standard
that U.S. courts should use in deciding cases of hostile environment sexual harass-
ment (Bernstein, 1997; Forrell & Matthews, 2000; Paetzold & O'Leary-Kelly, 1996),
although some authors suggest that the trend "is definitely toward a gender-specific
standard" (Levy & Paludi, 1997, p. 26).
decisions made by third parties, organizations that train their supervisors and human
resource managers in using this perspective may be more aggressive in identifying and
disciplining social-sexual behavior in the workplace. The use of a reasonable woman
standard that compels workers to take the perspective of alleged victims may also
help workers recognize that unwelcome social-sexual behavior is harmful (Wiener &
Hurt, 2000). In addition, employees who have practiced using the reasonable woman
perspective may be less likely to engage in inappropriate social-sexual behavior.
environment in only two studies and Gutek et al. (1999) pointed out that even in these
two studies the legal standard had very little impact, accounting for a maximum of
2% of the variance in the dependent measure.
Therefore, the little empirical research that has been conducted has found mixed
effects of the reasonable woman standard on laypersons' assessments of a situation
as constituting sexual harassment. Moreover, in at least some of the studies in which
effects have been found, these effects have been relatively small (Gutek et al., 1999).
However, it is important to note the limitations of the previous research in its ability
to generalize to the legal setting. First, the research has thus far relied on students,
employees, or potential jurors; the research has not explored the effect of standard on
the decision making processes of actual judges, who might be more knowledgeable
about the implications of a legal standard and/or more motivated to incorporate
the standard into their decision making. In addition, the research has used a limited
number of fact patterns as stimuli. Although these fact patterns were based on legal
cases, and the researchers made strong attempts to present the fact patterns in ways
that would reflect or be consistent with an actual trial, there may be elements of the
particular fact patterns that make them less likely to be affected by a legal standard
manipulation (Gutek et al., 1999).
A number of researchers have called for an improvement in the ecological va-
lidity of sexual harassment research (e.g., Goodman & Delahunty, 1998; Gutek &
O'Connor, 1995;Wiener et al., 1997). Specifically, Blumenthal (1998) noted that more
externally valid research was necessary to examine how triers of fact make decisions
in cases of sexual harassment. We were able to identify only two papers that tried to
address empirically the effect of the reasonable woman standard on actual triers of
fact. Using a simple box score analysis, Childers (1993) concluded that a reasonable
person standard is more likely to result in unfavorable decisions for the plaintiff,
whereas a reasonable woman standard is more likely to result in favorable decisions.
Similarly, on the basis of a chi-square analysis, Juliano and Schwab (2001) concluded
that plaintiffs had slightly higher success rates in cases in which the courts adopted
the reasonable woman standard compared to the reasonable person standard. Unfor-
tunately, Childers' analysis (Childers, 1993) did not use generally accepted measures
of statistical significance and neither study examined the effect of standard control-
ling for other factors (e.g., severity of the harassing behavior, presence of witnesses)
demonstrated to influence the outcomes of sexual harassment cases in previous re-
search (Terpstra & Baker, 1992). As a result, the effect of the reasonable woman
standard on court decisions remains unclear.
behavior, presence of witnesses) are held constant, hostile environment sexual ha-
rassment cases heard under a reasonable woman standard will be more likely to
result in decisions that favor the plaintiff than cases that are not heard under this
standard.
METHODS
Data Coding
All variables were obtained from opinions published on Lexis/Nexis or in the
Bureau of National Affairs' Fair Employment Practices Cases, Federal Supplement,
Federal Reporter, or Employment Practices Decisions.
Case opinions can vary dramatically in length. Within our sample, opinions
ranged from 1-2 pages of text to 155 pages of text, with many cases in the 40-50 page
range. Two individuals coded an initial set of 104 cases (36% of the complete dataset).
The primary coder was a doctoral student in Business Administration, with extensive
coursework in Human Resource Management and Business Law. For reliability pur-
poses, we enlisted a secondary coder who was completing a joint JD and Labor and
Industrial Relations Masters degree program. To estimate reliability between the
two coders, we used Ir (Perreault & Leigh, 1989) because this measure overcomes
problems associated with Cohen's kappa. For example, unlike kappa, and appro-
priate in the context of our data, the Ir index does not require a priori knowledge
of the distribution of observations. Across our measures, Ir ranged from .78 (Docu-
ments) to .98 (Court decision). Perreault and Leigh (1989) suggest that a reasonable
standard for Ir might be .70 in exploratory research, and .80 in other research ap-
plications. Coders discussed discrepancies in their independent coding and clarified
the codesheet and decision rules. All discrepancies were reviewed, researched, and
resolved by the coders for the 104 cases in the final sample. The primary coder then
coded the remaining 186 cases. Of the 124 cases in the final sample, 73% (n = 91)
were coded by both coders.
Dependent Measure
Court Decision
Judges' decisions regarding the hostile environment claim in each case were
categorized as for the plaintiff (1) or for the defendant (0). Reliability on this variable
was Ir = .98 (coder agreement = 98%).
Control Variables
Case Characteristics
Previous research has identified several variables that influence court decisions
in cases of sexual harassment (Knapp & Heshizer, 2001; Terpstra & Baker, 1988,
1992). Because of the limited information provided in the case opinions and consis-
tent with previous research, we used Terpstra and Baker's dichotomous (0/1) coding
scheme (Terpstra & Baker, 1992) to code cases in terms of: Frequency (coded as
1 if behavior occurred on more than one occasion and 0 otherwise, Ir = .96 and
coder agreement = 96%); Severity (coded as 1 if the harassment was severe in-
cluding sexual assault/rape and unwanted physical contact and 0 otherwise, Ir = .92
and coder agreement = 92%); Status (coded as 1 if the alleged harasser held a
supervisory position and 0 otherwise, Ir = .95 and coder agreement = 95%); Conse-
quences (coded as 1 if the case involved tangible adverse job-related consequences
The Reasonable Woman Standard 17
Predictor Variables
Standard
We used two alternative methods of coding legal standard. First, we used in-
formation contained in the published case opinion to identify whether the judge
explicitly reported using a reasonable woman standard. This variable (Explicit stan-
dard) was coded 1 if the case opinion specified that the judge had used a reasonable
woman standard. We also coded as 1 cases that used an explicit "reasonable vic-
tim" or "reasonable person of the same sex" standard. Where the alleged victim is
a woman, the "reasonable person of the same sex" and the "reasonable woman"
standards are synonymous (Achampong, 1999). In addition, although the reason-
able woman and reasonable victim standards are conceptually different, both the
5Sex was inferred from the judge's name and the sex-specific pronouns used in the biographies. In some
cases, the name of the judge's spouse and gender specific club memberships (e.g., a women's law associ-
ation) also provided information relevant to the judge's sex.
18 Perry, Kulik, and Bourhis
courts and legal scholars have frequently used these two terms interchangeably. In
practice, because women comprise the majority of victims of sexual harassment, a
reasonable victim in most sexual harassment cases will be a woman (Childers, 1993;
Johnson, 1993; Paetzold & O'Leary-Kelly, 1996). Only one case in our sample em-
ployed a reasonable victim standard and this case also employed a reasonable woman
standard.
The use of a reasonable person standard is normative. As Ashraf (1992, p. 483)
noted, "Traditionally, to determine whether a cause of action existed for sexual ha-
rassment, courts used the 'reasonable person' standard."The reasonable person stan-
dard is currently ". .. used in the majority of sexual harassment cases involving a hos-
tile work environment" (Glidden, 1992, p. 1828). Further, legal commentators have
argued that in the absence of factors explicitly motivating a decision maker to apply a
woman-based standard, a male perspective is likely to dominate (Forell & Matthews,
2000). Therefore, cases that did not explicitly use a reasonable woman, reasonable
victim, or a reasonable person of the same sex standard were coded 0. In many of
these cases the opinion included an explicit reference to the use of a reasonable per-
son or reasonable man standard. Whenever possible, the coders' classification of the
standard used in a particular case was verified using legal sources (Adler & Peirce,
1993; Childers, 1993; Glidden, 1992; Grider et al., 1992; Johnson, 1993). Reliability
on this variable was Ir = .97 (coder agreement = 97%).
The second coding method took into consideration legal precedents influenc-
ing the standard judges should be using in each case. The doctrine of stare decisis
requires that precedents generally be followed by courts of the same or lower rank
(Roehling, 1993). Kelso noted, "... the lower court is ordinarily obliged to follow
the decisions from the highest court within the jurisdiction and has no discretion
not to follow those decisions. A judge of the lower court who deliberately refuses
to follow a higher court's precedents may even be guilty of judicial misconduct"
(1999, p. 11). Currently, lower courts are expected to use the legal standard de-
rived from higher court rulings within their circuit (Lengnick-Hall, 1995), and ".... at
least three circuits have explicitly adopted the 'reasonable woman' standard for de-
termining actionable hostile environmental sexual harassment" (Paetzold & Shaw,
1994, p. 681). Within these three circuits (the Third, the Ninth, and the Sixth), three
cases (Andrews v. Philadelphia, 1990; Ellison v. Brady, 1991; Yates v. Avco, 1987)
are recognized in the legal literature as establishing the use of a reasonable woman
standard for determining whether an actionable claim of sexual harassment exists
(e.g., Ashraf, 1992; Bernardin, 1994; Glidden, 1992; Kirn, 1993; Wiener & Hurt,
1999).
Factors that influence an opinion but that do not involve new policy decisions
may not be discussed in opinions (Roehling, 1993). In particular, written opinions
generally do not include all of the details regarding precedents; judges rarely discuss
the reasoning behind a precedent or explain why a precedent should be followed
(Marvell, 1978). Consequently, cases that postdate a reasonable woman precedent
are likely to apply a reasonable woman standard even if the legal standard is not
explicitly stated in the written opinion. Therefore, we created a variable (Precedent)
that took into account precedents operating within the Third, the Ninth, and the
Sixth circuits. Precedent was coded 1 if the case followed a precedent-setting case
The Reasonable Woman Standard 19
(Andrews v. Philadelphia, 1990; Ellison v. Brady, 1991; Yates v. Avco, 1987) in its
circuit. For example, a district-level case in the Ninth Circuit would be coded as
Precedent = 1 if its decision date postdated the decision date (January 23, 1991) of
the precedent-setting case in the Ninth Circuit (Ellison v. Brady, 1991). For cases
that did not follow a reasonable woman precedent, Precedent was coded 0.
RESULTS
Descriptive Analyses
Table 1 presents the means for each variable and the correlation matrix. Con-
sistent with previous research (Terpstra & Baker, 1992), judges were more likely to
find in favor of defendants; only 36% of the trials resulted in decisions in favor of
the plaintiff. Thirteen cases (10%) were categorized as using an explicit reasonable
woman standard (Explicit standard = 1), and 18 (15%) were categorized as following
a reasonable woman precedent-setting case (Precedent = 1).
6The main logistic regression analyses reported in the paper were repeated removing the 10 cases heard
by female judges. Results of these analyses revealed a pattern similar to the analyses reported in the
paper. These analyses are available from the authors upon request.
Table 1. Means and Correlations
Variables Meansa 1 2 3 4 5 6 7 8 9
1. Court decision 0.36
2. Frequency 0.96 .16*
3. Severity 0.60 .31*** .08
4. Status 0.77 .09 -.01 .11
5. Consequences 0.88 .02 -.08 .05 .16*
6. Witnesses 0.38 .21** .08 .17* .14 .04
7. Documents 0.17 .15* .09 .15* -.01 .04 -.22**
8. Management reasons 0.57 -.33*** -.01 -.21** -.08 .13 -.10 -.09
9. Notification 0.60 .24*** .17* .23** -.29*** -.0 .13 .33*** -.08
10. Organizational action 0.37 -.16* .16* .09 -.18** -.18* -.02 .10 .09 .39***
11. Judge gender 0.08 -.04 .06 -.06 .02 .02 .07 .10 .20** .12
12. Year of case 90.20 .08 -.05 -.04 -.11 .07 .21** .12 -.12 .24***
13. Explicit standard 0.10 .07 .07 -.04 .06 -.12 .11 .13 -.02 .01
14. Precedent 0.15 .07 -.15 -.08 -.05 .15* .01 -.13 .03 -.08
aVariables were dummy-coded (except for year of case for which only the last two digits are indicated); means can be interpr
N = 124
*p < .10. **p < .05. ***p < .01.
The Reasonable Woman Standard 21
model, the odds of winning a case were 3.17 times as large for plaintiffs in cases
following a reasonable woman precedent as they were for plaintiffs in cases not fol-
lowing a reasonable woman precedent. Thus, our hypothesis received some albeit
weak support. After controlling for other variables likely to influence court decisions,
we found a weak relationship between legal standard and court decision, but only
when legal standard was operationalized using the Precedent variable.
Probability Analysis
Our logistic regression equations predict the log odds (logit) of a plaintiff win-
ning a sexual harassment claim. The "odds" is a ratio of probabilities: in our case, the
probability of a plaintiff winning her case divided by the probability of the plaintiff
not winning her case. However, it can also be useful to forecast the probability of
plaintiffs winning cases, assuming a given set of case characteristics. Therefore, we
transformed the log odds into probabilities using procedures described by DeMaris
(1995). First, we entered the mean values of our control variables into the Model
3 logistic regression equation (see Table 2) and calculated the estimated log odds
22 Perry, Kulik, and Bourhis
twice: once for the situation in which the Precedent variable took on a value of 0
(i.e., for cases that did not follow a precedent) and once for the situation in which
the Precedent variable took on a value of 1 (i.e., for cases that followed a precedent).
Next, to obtain probability values, we calculated the estimated odds by exponenti-
ating the log odds obtained in the first step, exp(log odds). Finally, the probability
of a plaintiff winning her case = odds/(1 + odds). When cases are not heard under a
reasonable woman standard, the probability that the decision will favor the plaintiff
is 24%. However, the probability of a decision favoring the plaintiff when the case
follows a reasonable woman precedent-setting case is 50%.
DISCUSSION
Our results suggest that hostile environment sexual harassment cases that oper-
ated under a reasonable woman standard were somewhat more likely to be decided
for the plaintiff than cases that did not operate under a reasonable woman standard.
After controlling for case characteristics, judge gender, and the year in which the
case was decided, the Precedent variable had a positive, but weak, impact on court
decisions. These results suggest that the reasonable woman standard could have an
impact on future court decisions. In an average hostile environment harassment case
(assuming mean values on our control variables), a plaintiff's probability of winning
is only 24% if the decision is not influenced by a reasonable woman precedent. How-
ever, if the case follows a reasonable woman precedent-setting case, the plaintiff's
probability of winning increases to 50%.
It is important to note that the effect of legal standard approached significance
only when we considered whether the case followed a reasonable woman precedent-
setting case (Precedent variable). When we limited our focus to the explicit use of the
reasonable woman standard, no significant effect of legal standard was found. This
pattern of results may be due to the small number of cases using an Explicit standard
(n = 13). The results highlight the importance of considering the role of precedents
in court decisions.
Although our primary interest in conducting this research was to investigate the
effects of legal standard, our results also partially replicate some previous research
on case characteristics that influence legal outcomes in cases of sexual harassment
(Knapp & Heshizer, 2001; Terpstra & Baker, 1992). Results of the logistic regres-
sion analysis revealed that a number of case characteristics (Severity, Management
reasons, Notification, and Organizational action) influenced the outcomes of federal
district-level sexual harassment cases. Significant findings for Severity, Notification,
and Organizational action are consistent with the law. One determination of hostile
environment harassment is that the behavior is sufficiently severe or pervasive to
alter the victims' conditions of employment. In addition, in determining employer
liability, the Supreme Court recently clarified that employers must show that they
took reasonable care to prevent and immediately correct sexual harassing behavior.
Employers can also avoid liability if employees unreasonably fail to take preven-
tative or corrective employer provided opportunities (Hogler, Frame, & Thornton,
2002; Juliano & Schwab, 2001). Finally, we found no effect of judge gender on court
The Reasonable Woman Standard 23
decisions. Although it would have been informative to explore the interaction be-
tween judge gender and legal standard, this was not feasible because of relatively
small number of cases heard by female judges in our sample.
Implications
First, we consider the implications of our findings for employees and their
lawyers who are considering filing a legal complaint of sexual harassment. Clearly, it
would be advantageous for a plaintiff to have her case heard in a circuit in which the
reasonable woman standard was established by legal precedent. The plaintiff and her
lawyer have no control over the legal standard used to decide her case, as cases must
be heard in the district or circuit having jurisdiction over the claim. However, the le-
gal standard used in the relevant jurisdiction may have implications for lawyers' legal
strategies and their willingness to bring cases of hostile environment harassment to
trial. Circuits that use a reasonable woman standard send "a message to employers
that courts are taking an increasingly aggressive stance against sexual harassment
in the workplace..." (Westman, 1992, p. 819). Lawyers for plaintiffs may be more
willing to take sexual harassment cases to trial if the odds of a positive outcome
for their clients are improved. Consistent with this, Marvell (1978) found that when
lawyers were asked what factors lead them to file an appeal, "the factor mentioned
much more often than others was the chance of success..." (p. 303). This suggests
lawyers who try cases in courts that use the reasonable woman standard may be more
willing to try cases that they would otherwise deem too weak to take to trial. Our
research also suggests some variables that a plaintiff and her lawyer should consider
to realistically assess the strength of the plaintiff's case before filing (e.g., whether
she previously notified the organization of the harassment).
Second, our results have implications for the judiciary and the law. The adoption
of the reasonable woman standard is controversial. However, to this point, discus-
sions concerning the effects of using this standard have been speculative. The finding
that legal standard has some influence on federal sexual harassment court decisions
is important for those who support as well as those who do not support the use of
this standard. This study suggests that this standard increases the odds that plaintiffs
will win their cases. Courts are currently using different standards that have differ-
ent implications for court decisions, suggesting a need for the judiciary to develop a
consistent standard for hostile environment harassment.
Third, we consider the implications of our findings for organizations. As courts
increase their use of the reasonable woman standard, organizations may wish to incor-
porate this standard into their organizational grievance procedures. The reasonable
woman standard appears to lower the threshold that a third party uses to decide
whether an incident is sexual harassment (Wiener & Hurt, 2000). If organizations
do not incorporate a parallel standard into their internal grievance procedures, they
may choose not to act on complaints that are eventually found by the courts to con-
stitute illegal sexual harassment. In addition, sexual harassment awareness training
that trains organizational members to view behavior from the perspective of a rea-
sonable woman may also help organizations successfully manage sexual harassment
complaints and reduce vulnerability to later lawsuits.
24 Perry, Kulik, and Bourhis
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