[11.6.]. Sexual Harassment.
There are two types of sexual harassment:
quid pro quo sexual harassment (df.): offering or requiring sexual favors in exchange for employment opportunities, such as raises, promotions, or even keeping one’s job (the literal meaning of “quid pro quo” is “something for something”).
hostile work environment sexual harassment (df.): “the overall workplace environment is so pervaded with sexual harassment and intimidation that it creates an unfair barrier for women in the workplace.” (254 / 261)
Each type is prohibited by the Civil Rights Act of 1964, which implies that it is illegal to deny someone equal employment opportunities because of his or her sex.
As DesJardins points out, the word “sex” in the Civil Rights Act is ambiguous... It can mean either gender or sexuality.
The courts have tended to interpret the Civil Rights Act as referring to discrimination that involves sexuality. But DesJardins points out that women can be unjustly discriminated against because they are women, but in ways that do not involve sexuality. The Margaret Reynolds case is an illustration of this.
[11.6.1.] Hostile Work Environments and the Reasonable Man Standard.
DesJardins describes difficulties with the EEOC’s guidelines regarding hostile environment harassment, which read in part:
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. (quoted at 255 / 261, emphases added)
As DesJardins points out, this definition is both too broad and too narrow:
· it is too broad, in that it counts as sexual harassment behavior that should not be counted: it counts as harassment any behavior that has the actual effect of interfering with a woman’s job performance, even if it is not intended to do so, e.g., a prudish older woman who is very offended by mildly suggestive flirtation that would not offend younger workers.
· it is too narrow, in that it fails to count as sexual harassment behavior that should be counted: (he doesn’t give an example, but this seems to be what he has in mind): if a man makes constant obscene sexual comments to a woman without intending to interfere with her job performance, and if the woman is not bothered by it, then according to the EEOC policy, it is not sexual harassment.
Because of such difficulties, courts, in their interpretation of the guidelines, began to put weight on the word “unreasonably” and thus to rely on what’s called the reasonable man standard: “illegal harassment occurs only if a reasonable man would find the conduct severe enough to interfere with work.” (256 / 263)
But “reasonable man” itself might suggest a sexist bias. So the phrase “reasonable person” has become more standard.
But this raises an important question: “Do men and women differ over what constitutes unreasonable conduct of a sexual nature? Might a reasonable woman standard differ from a reasonable man on these cases and, if so, which should be used to determine the seriousness of the harassment?” (256 / 263) If reasonable men and reasonable women do differ on the question of whether conduct is severe enough to interfere with one’s work, then the reasonable person standard is really two standards: one for reasonable men and another for reasonable women.
But there is another ambiguity in the reasonable person standard: it could be read as referring to an ideal reasonable person or to an average reasonable person:
· ideal reasonable person standard: “establishes a norm or objective criterion which people would adopt if they were to be reasonable (i.e., if they had the relevant facts, considered the issues objectively and carefully, and so forth.)” (246)
· average reasonable person standard: refers to what the average reasonable person in society would approve of, whether or not the average person is ideally rational.
So the reasonable person “standard” actually encompasses four possible standards:
· the ideal reasonable man standard;
· the ideal reasonable woman standard;
· the average reasonable man standard; and
· the average reasonable woman standard.
And it is possible that each of these four standards would yield different results when applied to a given case.
· For example, the average reasonable man might judge the behavior of Margaret Reynolds’s co-workers as not being unreasonable and therefore not counting as sexual harassment, while the ideal reasonable woman might view that same behavior as being unreasonable and therefore counting as sexual harassment.
DesJardins describes two reasons for adopting a “reasonable woman” standard over a “reasonable person” standard:
1. “In a society, and especially in the workplace that remains very male oriented, the reasonable person standard can have the effect of simply maintaining the status quo [the existing state of affairs; literally, “the state in which”] ... In a situation in which the norm is one of prejudice or discrimination, adopting a ‘normal’ standard for judging behavior is unlikely to adequately address injustice.” (256 / 264, emphasis added)
2. “When it comes to sexuality and sexual relationships, women and men do seem to perceive sexual experiences differently.” (257 / 264) DesJardins’ point seems to be that even an ideal reasonable man standard may not recognize as sexual harassment behavior which should be recognized as such. So only by allowing a reasonable woman’s standard (either ideal or average) can be eliminate those sorts of behavior from the work place.
But he also describes two reasons against adopting a “reasonable woman” standard, either average or ideal:
1. Such a standard “can reinforce the kind of sexual stereotyping and paternalism that we should be rejecting. Women can be perceived as more sensitive, fragile, and delicate than men and thus they deserve extra protection from the rough and tough workplace.” (257 / 264, emphasis added)
2. Such a standard “may create an unfair situation for men. If women and men do perceive sexual situations differently, and if the average man truly does not perceive harassing situations as harassment, then it would appear unfair to hold men responsible for conduct that is unintended and misunderstood.” (257 / 264-65)
Stopping point for Wednesday December 1. No new reading for next time; we will review for your final exam, which is scheduled for Wednesday December 8 (8-10am).
This page last updated 12/1/2010.
Copyright © 2010 Robert Lane. All rights reserved.