A reasonable woman standard in sexual harassment litigation

Abstract

Sexual harassment litigation may be thwarted by judges failing to address the acts in question from the perspective of the victim, thus legitimising behaviour acceptable to men but unacceptable to women. This paper shows how this problem may be overcome by adopting a 'reasonable woman ' standard to decide 8 (i) objectively, the acts in question constitute harassment; and (ii) subjectively, whether the victim suffered injury. Using US case law the paper shows how the reasonable woman standard, which has been accepted in some courts, can allow women's perspectives to be heard. The paper suggests that a reasonable woman standard should be adopted in UK tort law, spececally in litigation under the Sex Discrimination Act, but also for litigation under trespass torts and under the Protection from Harassment Act. Doctrinally, the proposed standard fits within the fabric of tort la; and does not challenge the principle of corrective justice. From a feminist perspective, the reasonable woman standard can successfully redirect tort law to address gender-specijic harms.

A quantitative and qualitative analysis of sexual harassment claims 1995-2005

“…It also denies women a degree of protection in the workplace. These findings have a disturbing resonance with, and indeed replicate those of Monti (1999: 570), who analysed US cases of sexual harassment. Monti (1999) found that the victim's character was taken into account by the court, and that, as in many rape cases, judges put the women on trial for being unsociable and exposing themselves to harm for not trying to understand men.…”

“…Existing research strongly indicates that most women experiencing sexual harassment in organisations react passively, in the main trying to ignore the behaviour and/or avoid the perpetrator (Conaghan, 2002; Monti, 1999; Samuels, 2004). This dominant reaction has been understood by researchers as reflecting the realities of power differentials in organisations, and how these operate through sexual harassment.…”

“…This dominant reaction has been understood by researchers as reflecting the realities of power differentials in organisations, and how these operate through sexual harassment. This in turn has been linked to socialisation that encourages passivity among women, with fear of reprisal and of the other potential costs of confrontation (Conaghan, 2002; Monti, 1999; Samuels, 2004). It is noteworthy that even in the cases explored for the present study (i.e.…”

“…Shakespeare had it right when he caused the character Rosaline to say, at the end of Love's Labours Lost : ‘A jest's prosperity lies in the ear of him who hears it, not in the tongue of him who speaks it’. The feminist literature might argue that men must learn to modify their behaviour so as to enable women to carry out their work with ‘professional dignity and without the barrier of sexual differentiation and abuse’ (Monti, 1999: 264).…”

“…The tribunals seem oblivious to the notion that the engagement in sexual banter might be a ‘coping strategy’, or a way to deal with the situation in which a woman finds herself. As Monti (1999: 570) observed, this approach by a court ignores the possibility that women may at first play along with sexual banter in order to gain acceptance in the workplace, and later find it undesirable to prolong this sort of behaviour. Employment Tribunals need to be encouraged to adopt a more female‐orientated view in order to address the suffering endured by women in the workplace (Conaghan, 2002; Monti, 1999; Samuels, 2004).…”