Sexual harassment in the workplace remains an ongoing issue. The definition of the reasonable person has been historically male — and male of a certain type: white, cis-gendered, economically privileged, able-bodied. Others have asked whether an idea so tied to common practice and societal norms can adequately address the experiences of women and others who have not been regarded as the norm. Questioning the reasonable person standard and recognising its historical limitations can inform a new sensibility regarding appropriate behaviour. Many of the discussions arising from MeToo have contributed to just this sort of dialogue. In the context of sexual harassment, the reasonable person standard can be used to reflect not just the average person, but a person who is aware of the barriers to workplace equality.
A ‘reasonable woman’ standard for sexual harassment claims
A 'reasonable woman' standard for sexual harassment claims - Worklogic
Some federal courts have used a reasonable woman standard rather than the traditional reasonable man or reasonable person standard to determine whether hostile environment sexual harassment has occurred. The current research examined the impact of the reasonable woman standard on federal district court decisions, controlling for other factors found to affect sexual harassment court decisions. Results indicated that there was a weak relationship between whether a case followed a reasonable woman precedent-setting case and the likelihood that the court decision favored the plaintiff. The implications of our findings for individuals and organizations involved in sexual harassment claims are discussed. This is a preview of subscription content, log in to check access.
The Reasonable Woman Standard: Effects on Sexual Harassment Court Decisions
Sexual harassment is a long-standing, pervasive issue in the workplace. However, in the last few years sexual harassment has permeated national headlines and has become a perennial topic in national discourse. Some of the most notable controversies in the last few years include: the allegations and actions of President Trump during the presidential election; 1 the Hollywood scandals involving Harvey Weinstein, 2 Kevin Spacey, 3 Louis CK, 4 among others; the uncovering of pervasive sexual assault by USA Gymnastics doctor, Larry Nassar; 5 and the rampant sexual harassment by Judge Kozinski, 6 being some such examples of major controversies in recent years.
Quid pro quo harassment occurs when an employer conditions employment opportunities on an employee's submission to unwelcome sexual advances. Hostile environment harassment is unwelcome sexual conduct that interferes with an individual's employment or creates an intimidating, hostile, or offensive work environment. The standard that is used in evaluating whether a person has been subjected to sexual harassment varies from jurisdiction to jurisdiction: some use a reasonable person standard, and some use a reasonable woman standard. In evaluating alleged sexual harassment, the reasonable person standard is an objective standard of perception based on a fictitious, reasonable person.