The Reasonable Woman: Sense and Sensibility in Sexual Harassment Law

...If viewed as an invitation to offer concrete information about women's lives, the "reasonable person" standard may yet help legal decision makers to create a less oppressive workplace...

...As the eighties closed, this approach began to be embraced by the federal courts...

...What should legal decision makers—and actors in the workplace—know about women, work, and sex that would help them assess claims of sexual harassment in ways that transform the present, often oppressive assumptions of the workplace...

...Women with strong support from family and friends may be able to weather harassment with less psychological strain than women who lack such resources...

...As a result, many women feel that they are marginal participants in the workplace, that their hold on their job or on the respect of their superiors is tenuous and subject to factors not within their control...

...Women's entry into nontraditional jobs has been met with outright hostility, expressed through conduct verging on physical intimidation...

...There were several sources of this attitudinal sea change...

...Feminist advocates pointed first to the gendered origins of the standard...

...Others argued that the unity presented in depictions of "women's experience" derived not from homogeneity but from erasure...

...Resistance also required a challenge to objectivist modes of knowledge production...

...sexual epithets may make her feel that she is being objectified...

...choosing contextual reasoning over abstract principle is another...

...Do certain kinds of conduct contribute more to the creation of such environments than others...

...Comparatively privileged white middle class women—through solipsism or strategic exclusion—had eclipsed the experiences of less privileged subgroups...

...In Lehmann v. Toys 'R' Us (July 14, 1993), a New Jersey Supreme Court case decided days before Harris, Justice Marie Garibaldi pointed to women's historical marginality in the workplace and their vulnerability to sexualized abuse, to give content to a "reasonable woman's" perspective...

...It stressed the importance of considering the conduct from the standpoint of a "reasonable woman": "a sex-blind reasonable person standard," the court noted, "tends to be male biased and tends to systematically ignore the experiences of women...

...Women are newcomers to many work settings...

...Some scholars, influenced by cultural feminism, have valorized "ways of knowing" they describe as characteristic of women: reasoning from personal experience is one example...

...These insights made many feminists wary of the gathering momentum behind the "reasonable woman" standard...

...Sexual epithets and targeted sexual talk, whatever their ostensible purpose, remind women that, despite their advancement to roles not technically defined by sex, they can still be treated as sexual objects or addressed in primarily sexual ways...

...but information about the ways that many women respond to harassing behavior may prevent judges from relying on stereotyped expectations about victims' responses...

...The "reasonable person" standard, properly elaborated, might be a vehicle for the courts to play a role in this educative process...

...Moreover, the assertion of a single valid perspective on sexual harassment belied the gender differentiation that many kinds of research were beginning to reveal...

...I would emphasize four kinds of information that could be offered by expert testimony or by counsel in framing their clients' claims...

...In Ellison a woman received a series of letters from a colleague she barely knew, describing his love for and continuous surveillance of her...

...Moreover, the standard might fail to prompt the desired response from male judges—permitting them to indulge their own, biologized visions of female difference...

...If a woman is able to drag herself to work and perform some acceptable version of her assigned tasks, decision makers—and employers—assume that the behavior has not reached an actionable level...

...There are practices—such as those involving devaluation or sexualization—to which they are likely to have a heightened sensitivity by virtue of having experienced them, heard about them repeatedly, or seen them applied to other women...

...The first goal of the "reasonable woman" standard was to emphasize the gendered character of sexual harassment and prevent resort to a "common sense" that was likely to preserve the status quo...

...Is an "intimidating" or "offensive" environment different from an "abusive" one...

...1) The first kind of information concerns barriers that women have faced, and continue to face, in the workplace...

...women were likely to associate them with manipulation, exploitation, or threat, and to see them as imperiling their professional prospects...

...The second two factors that courts should consider concern not the backdrop to sexual harassment but its consequences...

...The broader cultural backdrop to these forms of conduct needs to be made explicit, so that professedly wellintentioned men who defend sexual talk as harmless humor can understand that it may have connotations they do not see...

...The "myth of the black rapist" has produced a complicated legacy for black women, in which fears about physical security vie with suspicions of racial exploitation...

...There WINTER • 1995 • 51 Send Harassment are things that women are more likely to know by virtue of having lived as women...

...These differences among feminists were brought to the fore by the Supreme Court's second case on hostile environment sexual harassment: Harris v. Forklift Systems (November 9, 1993...

...54 • DISSENT...

...Men were likely to see sexualized words or gestures as flattering, indicative of long-term interest, and not threatening to professional progress...

...Once inside the workplace, women have been met by glass ceilings, by ostensibly neutral criteria that (barely) conceal genderbased judgments, by biologized assumptions about their ability to perform particular jobs...

...The trial court had shrugged off the behavior as a "pathetic attempt at courtship," but the Court of Appeals disagreed...

...Sexual aggression, including violent forms of sexual assault, has been repeatedly used by employers and fellow employees to resist women's entry into blue-collar and other nontraditional workplaces...

...Both men and women sought greater clarity about the ways in which their perceptions of sexual harassment diverged, and the "hope" for mutual understanding expressed by Ellison failed to fill the bill...

...The disparagement of sexual harassment claims by female "mavericks" like Judge Maryanne Trump Berry gave some advocates pause...

...It would characterize the evaluation of harassment, like the experience of harassment itself, as a phenomenon strongly differentiated on the basis of gender...

...Radical feminists charged that the focus on women's conformity to male norms diverted attention from a system of power relations through which male characteristics become normative...

...If perceptions of sexual harassment do not depend solely on biology, life experience, or genderspecific modes of knowing, but rather on varied sources of information regarding women's inequality—if such perceptions, in other words, are a matter not of innate common sense but of informed sensibility—then they can be cultivated in a range of women and men...

...Compounding these difficulties has been a question of perspective or vantage point in assessing the alleged abuse...

...Images of women that emphasized care or connection could be used to explain the absence of women from more competitive jobs—a link that was made in the notorious Sears litigation...

...The "reasonable woman" might simply free women judges to resort to their intuitions, in ways that were not uniformly promising to female claimants...

...Cultural feminists argued that this move understated and undervalued the biological and social ways in which women differed from men...

...As the call for a fuller elaboration of women's perspectives continued, the "reasonable woman" standard began to be challenged from an unexpected quarter: the feminist movement itself...

...Analyses like that of Catharine MacKinnon offered an explanatory social context for these differences...

...This proliferation of adjectives has raised more questions than it has answered...

...The "reasonable woman" standard was, in fact, adopted by several additional courts in the wake of the Senate hearings...

...Yet a statute that promises women an environment "free from discriminatory intimidation, ridicule, and insult" requires that fact-finders look further: there are many ways that sexual harassment can create impediments, even for the woman who continues to do her job...

...4) The final type of information that legal decision makers require is information about the responses of women workers to harassment...

...The oppressed, in this view, enjoy a double source of knowledge: their experience in a society built around the understandings of the privileged familiarizes them with those perspectives, but gives them a view from a subordinated social location that the privileged lack...

...The court's embrace of the "reasonable person" standard is not an unequivocal step forward...

...These questions, which lawyers have argued about for almost a decade, reached the general public with the Senate testimony of Anita Hill...

...These movements resisted the gender-neutrality characteristic of equality theories, which had described women as substantially similar to men...

...But this likelihood cannot be collapsed into inevitability: some women have had few of the experiences that produce such sensitivity...

...It avoids promulgating falsely unifying images of women...

...A woman's personality type and the particular coping mechanisms she uses to respond to adverse circumstances may have a major impact on her reaction...

...But the ensuing debate—between partisans of a universal common sense and those who see perceptions of sexual harassment as gender-differentiatedhas thus far produced more heat than light...

...How can judges find an independent ground on which to stand in assessing these allegations...

...The second goal was to permit access to a distinct set of perspectives that would open the way for a transformation of workplace norms...

...It suggests that a court that has displayed studied disinterest in group-based distinctions is not prepared to embrace a standard that underscores—and perhaps risks instantiating—gender difference...

...As this early twentieth century elaboration reveals, what was being presented as universal common sense was in fact the sense of a particular, socially located person: one whose perspective was shaped by his freedom to relax with his magazines at home, and to enjoy sovereignty over his physical—and familial—domain...

...All of these factors suggested the preferability of a "reasonable woman" standard...

...The meanings assigned to sex by women in this culture are various, and include physical pleasure, emotional connection, and opportunities for self-discovery and self-expression...

...Even where the motivation is more ambiguous, the threatening or devaluative resonance may persist...

...Others challenged accounts of strong gender differentiation as essentialist and potentially oppressive...

...This formulation would explicitly challenge notions of a universal perspective...

...And it took a few steps in that direction, noting that conduct considered unobjectionable by men might be offensive to women, and stating that women's vulnerability to sexual assault gave them a "stronger incentive" to be concerned about sexual behavior in the workplace...

...Empirical studies of sexual harassment suggest that fewer than 20 percent of women who believe they have been WINTER • 1995 • 53 Sexual Harassment harassed complain to authorities within the workplace, and even fewer leave their jobs...

...Both groups bridled at the possibility that women's perspectives would be described in terms simultaneously applicable to men...

...The central challenge of sexual harassment litigation has been to define when harassment becomes sufficiently pervasive to create a "hostile environment...

...Some asked whether the 50 • DISSENT Sexual Harassment divergent social circumstances of women could possibly yield the same knowledge: how could modes of reasoning shaped by the domestic context, for example, apply to women who did not remain in the home or live within conventional families...

...Some might be included in judges' instructions, when these cases are tried to juries...

...The first solution offered by the courts was to assess the claims of the plaintiff from the perspective of the "reasonable person...

...Some feminists worried that unitary images of female difference could be manipulated by hostile forces...

...The court recognized the need, in such a context, to elaborate the differences in perspective between men and women...

...But the court also agreed to consider whether hostile environment claims should be reviewed under a gendered or gender-neutral standard...

...That case presented the question of whether plaintiffs must demonstrate "serious psychological injury" in order to win their cases...

...Feminist writers assailed the notion of "truth" as something "out there," external to the position of the observer, accessible by certain neutral observational methods...

...Even in their less overtly threatening guises, sexual depictions of women may be trivializing, suggesting that women find their primary purpose in male attention, titillation or satisfaction...

...What is known about women workers, and workers more generally, suggests that their visible response to harassing conduct will be an unreliable gauge of the severity or the practical impact of the treatment...

...Women's denunciation of senators who failed to "get it" stressed the gendered character of perceptions of sexual harassment, and the need for a gendered standard of evaluation...

...Judges might view it as authorizing them to decide cases on the basis of their own intuition: the same "common sense" that had marked the administration of the "reasonable person" standard in tort law—and the same "common sense" that WINTER • 1995 • 49 Sexed Harassment had normalized the practice of sexual harassment in the first place...

...Provision of this information is, in a sense, defensive: demonstration of some particular response should not, after Harris, be necessary for a plaintiff...

...My own argument begins with the antiessentialist insight that neither modes of knowing nor particular bodies of knowledge are inextricably linked to biological set or social gender...

...The "reasonable person" had its beginnings in the "reasonable man," a fellow who "takes the magazines at home and in the evening pushes the lawn mower in his shirtsleeves...

...Finally, feminists worried that the "reasonable person" standard might confirm the (largely male) judiciary in its unreflective assurance that it understood the phenomenon of sexual harassment...

...Finally, the resort to a vantage point ostensibly accessible to any observer held the promise of reducing the growing confusion over the "pervasiveness" standard...

...But the growing concern of even well-intentioned men with the "new rules of engagement" pointed to the need for explicit discussion of the determinants of gender difference in this area...

...An individual victim's response to sexual harassment is described by psychologists as a function of many things besides the nature of the conduct...

...A range of "anti-essentialist" feminists, led by lesbians and women of color, argued that unitary depictions of women replicated the false and exclusory universalism of the genderneutral approach...

...Although Harris has ruled out a requirement of psychological harm, many legal fact-finders still believe that harassment does not create a hostile environment unless women are rendered professionally nonfunctional...

...Most women handle the problem with some combination of levity (where the conduct assumes a jocular tone), conversational management, or avoidance...

...And it meant exposing those viewpoints considered to be neutral or true as another example of a partial perspective, distinguished only by the ability of its adherents to make their vision normative...

...the work they have traditionally performed has been poorly paid, socially undervalued, and situated on the lower rungs of occupational hierarchies dominated by men...

...What remains is the uncompleted task of elaborating the determinants of this "reasonable" perspective...

...This approach offered several advantages...

...Judges should be aware of the range of effects that even sexualized talk can produce, in assessing the pervasiveness of alleged harassment...

...Those feminist advocates who filed amicus briefs with the court were frankly divided on the question of the standard: the Employment Law Center and Equal Rights Advocates endorsed a "reasonable woman" standard, while Catharine MacKinnon and the Women's Legal Defense and Education Fund argued that "reasonableness" standards, whether gender-specific or gender-neutral, reinforce stereotypes and distract the court from the primary issue—the conduct of the defendant...

...The reasonableness term, as Martha Chamallas has suggested, could be interpreted to mean not the average person, but the person enlightened concerning the barriers to women's equality in the workplace...

...These varied impediments to job performance may have been what Justice Ginsberg had in mind when she stated, in her Harris concurrence, that sexual harassment makes it "harder for women to do their jobs" than it is for men...

...Second, the specification of a vantage point distinct from that of the actual plaintiff offered reassurance to employers...

...Yet among the most familiar meanings, themes of intimidation, objectification, and devaluation are readily discernible...

...Both can affect not only her self-esteem but the conditions of her employment: they may impair her concentration or productivity, or undermine her confidence in herself as a worker...

...Other scholars, retaining a focus on the power dimension, have claimed an "epistemic advantage" for those at the bottom of reigning hierarchies...

...2) The second kind of information decision makers require concerns the role of sexualized treatment in thwarting women in the workplace...

...But as feminist advocates soon made clear, the "reasonable person" standard only complicated the controversy...

...The second influential movement was the challenge to objectivist accounts of knowledge...

...Hall v. Brooklands Auto Racing Club, 1933, quoting "unnamed American author...

...In a landmark case called Ellison v. Brady, the Ninth Circuit Court of Appeals held that sexual harassment should be evaluated from the perspective of the "reasonable woman...

...Yet beyond the notion that such a perspective would "take harassment seriously" —viewing it neither as a right of the employer, nor as a harmless, if vulgar, form of male amusement— there was little explicit discussion of what insights or sensibilities it entailed...

...The challenge confronting feminist advocates is to provide this jolt by other means: not through the jarring, but so far unelaborated, mechanism of a gendered referent, but through illumination of those factors that have shaped women's responses to sexual harassment...

...Though sexualized treatment can affect the performance of women workers directly, many of its most far-reaching effects derive from its impact on her colleagues and associates...

...Sexualized conduct in the workplace may interact with all of these factors, inducing a sense of precariousness or professional threat that it would not necessarily induce in a man...

...The first was a tendency toward gender differentiation, characteristic of both cultural and radical feminisms...

...The gender-specific language would place male judges on alert that they could no longer rely on their unexamined intuitions...

...The decision, when it came, was anticlimactic...

...The "reasonable woman" standard would replace those intuitions with a perspective that promised a radical revision of workplace conditions...

...Just as being female does not guarantee transformative perceptions of sexual conduct in the workplace, being male does not exclude the possibility of having, or developing, them...

...Although the court resoundingly rejected the psychological injury requirement, it resolved the question of standard in less than a sentence, stating that the court should review plaintiff's claim according to the perspective of the "reasonable person," with no elaboration and no explanation of its decision...

...They worried that the "reasonable woman," like other paradigmatic "women" of feminist theory, would turn out to be white, middle class, and heterosexual...

...Resisting such power meant exposing the extent to which understandings of social relations are shaped by social location...

...The Supreme Court accepted the idea of hostile-environment sexual harassment in 1986, but its pronouncements on the question of pervasiveness have been frustratingly vague...

...A male employer who propositions a female subordinate may be expressing a genuine interest, but it is also possible that he is asserting a combination of sexual and economic power, which reminds the woman of her social inequality...

...Though the courts have made only limited progress in fleshing out these perspectives, their elaboration is essential to reshaping the perceptions of judges, and ultimately of those who structure the workplace...

...I see no reason to draw so negative a conclusion...

...But the largely passive stance of the Ellison court toward the elaboration of perspectival differences is expressed in its "hope that over time men and women will learn what conduct offends reasonable members of the opposite sex...

...The status of legal norms or social understandings as "true" or "neutral," and the legitimation of certain methods for gaining access to them, are incidents of power, they argued...

...These elaborations of women's circumstances in many workplaces can, and have, been used to assist in the evaluation of sexual harassment claims...

...Sexual harassment violates the law when it is "severe or pervasive [enough] to alter the conditions of plaintiff's employment and create an abusive working environment," or when it "unreasonably interferes with [plaintiff's] work performance and creat[es] a hostile, intimidating or offensive" environment...

...They may compromise the provision of assistance, training, or staff support, or may prevent her from developing the kinds of collegial relationships that facilitate progress in any employment setting...

...Their challenge to this standard reflected the confluence of two 48 • DISSENT Sexual Harassment intellectual movements within feminist theory...

...In the long tradition of jurists who have sought procedural answers to festering substantive disputes, proponents of the "reasonable person" test appealed to perspective— in this case, a kind of universal common sense—to mitigate controversy over "pervasiveness...

...Some subset of male judges will now, no doubt, resort to their own, unschooled intuitions in evaluating sexual harassment cases...

...It is hard to know what conclusions to draw from this cryptic affirmation of genderneutrality...

...52 • DISSENT Sexual Harassment It is largely these negative cultural themes that echo in sexualized treatment in the workplace...

...So there was a growing division among feminist advocates over the "reasonable woman" standard, with some calling for a further elaboration or differentiation of the standard, and others seeking a return to gender neutrality or a rejection of all "reasonableness" criteria...

...These diverse insights combined to fuel a critique of the "reasonable person" standard...

...Providing fact-finders with this information places the individual victim's response in context, so as to prevent judges from "trying the victim" or neglecting more accurate indications of pervasive harassment they may have before them...

...3) Sexual harassment can produce a range of effects on the work lives of women...

...It held that, viewed from the perspective of a "reasonable woman," receiving "long, passionate, disturbing" letters from a person one barely knew represented sufficiently pervasive and severe harassment to create a hostile environment...

...Both the strengths and the drawbacks of the Ellison opinion were underscored in the revolution catalyzed by Anita Hill...

...Even in settings where women have not faced overt barriers, they have been confronted with reminders that workplaces were not designed to meet their needs: persistent demographic disparities, machinery constructed to male needs, failures to accommodate women's disproportionate parental responsibilities...

...it protected them from liability arising from idiosyncratic claims...

...But it also fails to jolt judges into recognition that their intuitive perspectives are not the only, or the preferable, vantage point on the claims before them...

...Such impressions may affect evaluations or considerations for promotion...

...One important strategy in this effort has been a re-valuation of nondominant ways of knowing about the world...

...Social scientists like Barbara Gutek pointed to a sharp divergence in the way men and women view sexualized conduct in the workplace...

...They reflect the experience not of any paradigmatic woman but of diverse groups of women, in and out of the workplace...

...First, it had the legitimizing pedigree of a long history in the law: courts had assessed the conduct of torts defendants from the standpoint of the "reasonable man" and later the (genderneutral) "reasonable person" to determine whether they had met the required duty of care toward plaintiffs...

...High rates of sexual assault by strangers and acquaintances have led many women to feel that their sexuality makes them physically vulnerable...

...But has the court scuttled the entire project of introducing a new, non-dominant sensibility about sexual harassment into adjudication...

...Courts are frequently confronted with a plaintiff who argues that certain conduct starkly interferes with her work performance, and a defendant who argues that the same conduct is trivial, episodic, jocular, or nonintrusive...

...Even exposure to the same kinds of oppressive influences may produce different responses in different women...

...When a woman is addressed by her supervisor as if her most salient attributes were sexual, this may prevent other workers from viewing her seriously...

...Although the debate has offered a fascinating window on movements within feminist theory, it has rarely yielded sufficient guidance for the judgment of actual cases...

...Others asked whether simply living as a woman assured a particular perspective on sexual harassment...

...Women workers' experience of marginality within the workplace, and sexual vulnerability in and outside it, caused them to view the sexual inflection of work relations with a fearfulness unlikely to be shared by their male counterparts...

...others respond with indifference or denial...

...women who are aware of discriminatory practices may perceive them in different ways...

...These same factors, and those articulated below, could be used to explain a "reasonable person" standard as well...

...Women's ways of knowing" could be used to reinforce stereotypes of the intuitive or irrational woman...

...This second, and arguably more important, task can still be performed under a "reasonable person" standard...

...Propositions or touching from an unexpected source can make a woman fear sexual assault...