Sexual Harassment

This research paper discusses some of the more important variables such as sex of the observer, complainant, and alleged harasser; organizational structure; and individual differences in observers, complainants, and alleged harassers. While not all psychological studies of sexual harassment follow the contours of discrimination law, all the scientific literature eventually comes into contact with the law either as a starting point that shapes judgments of responsibility or as an ending point to address issues of discrimination. Therefore, it is helpful to organize the literature around the law.

Federal Sexual Harassment Law

Title VII of the Civil Rights Act of 1964 (amended in 1991) prohibits an employer from discriminating with respect to compensation, terms, conditions, or privileges of employment because of race, color, religion, sex, or national origin. With respect to sex, Title VII prohibits employers from exacting sexual contact in exchange for compensation or advancement (quid pro quo harassment) and from subjecting workers to abusive or hostile working environments because of their gender. In 1986, in Meritor Savings Bank v. Vinson, the U.S. Supreme Court upheld a liability finding against an employer who subjected a worker, because of her sex, to unwelcome misconduct that was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” After the Court heard Harris v. Forklift Systems, Inc. in 1993, hostile work environments required subjective (the victim actually experienced abusive conduct) and objective tests (a reasonable person would have found the conduct abusive). More recently, in its 2001 term, the Supreme Court affirmed in Clark County School District v. Breeden limits for the “severe or pervasive” test, holding that a comment and a chuckle were insufficient to define a hostile work environment. However, going the other way (increasing Title VII protection), the Court prohibited intragender harassment: “Nothing in Title VII necessarily bars a claim of discrimination ‘because of…sex’ merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are the same sex” in its holding in Oncale v. Sundowner Offshore Services, Inc. (1998). In recent times, the majority of cases brought to the Equal Employment Opportunity Commission and the courts are hostile work environment theories of liability. Psychologists find these cases most interesting to study as well.

To determine whether unwelcome social sexual conduct reaches the threshold of a hostile work environment, most courts adopt the reasonable person test, which according to Rabidue v. Osceola Refining Co. (1986) is “the perspective of a reasonable person’s reaction to a similar environment under essentially like or similar circumstances.” Other courts emphasize differences in how men and women view social sexual conduct. Specifically, in Ellison v. Brady (1991), the Ninth Circuit held that “a female plaintiff states a prima facie case of hostile environment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.” In Fuller v. City of Oakland (1995), the Ninth Circuit clarified this standard, holding that “whether the workplace is objectively hostile must be determined from the perspective of a reasonable person with the same fundamental characteristics” as those of the plaintiff. After the intragender holding in Oncale, the reasonable victim test looks to the background (e.g., gender, race, and age) of the complainant as well as the context of the conduct (e.g., persistence, status, and sexual orientation of the participants). Thus, the reasonable victim standard is a semisubjective test, which is concerned with whether a reasonable person with the same key attributes and in a situation similar to the complainant would find the offensive conduct sufficiently hostile to violate Title VII. While the issue of appropriate legal standard remains open today, after Harris there has been movement in most (but not all circuits) toward a more objective reasonable person test.

In Burlington Northern v. White, a recent 2006 case defining retaliatory action in hostile work environment sexual harassment, the Court reiterated that there are two types of hostile work environment claims. One type involves a tangible work action (e.g., hiring, firing, promoting, changing work assignments) in which defendants are strictly liable (if their supervisors were responsible for the tangible actions), and the second type creates abusive conditions through other conditions of employment (such as sexual comments, pornography in the work place, unwanted requests for dates). Interestingly, Justice Samuel Alito’s dissenting opinion in Burlington Northern pointed out confusion about whether the reasonable person is an objective test (ignoring plaintiff attributes) or a subjective test that takes into consideration the complainant’s individual characteristics (i.e., age, gender, race, family relations). Justice Alito’s opinion in Burlington suggests that the issue of objective versus subjective standard may soon become an important concern in this area of jurisprudence. There is need for more work that examines the power of the reasonable victim test to sensitize workers to gender, racial, and sexual orientation differences. Knowledge about how legal standards influence workers’ judgments should be of interest to social scientists, lawyers, legislators, and judges as they grapple with sexual harassment in a multicultural workforce populated with large numbers of members of both sexes.

Psychological Research on Sexual Harassment

Despite a plethora of empirical research efforts, few theories explain the production of sexually harassing conduct or the evaluation of sexual harassment allegations at work. With regard to the production of sexually harassing conduct, Barabara Gutek proposed and successfully tested sex-role spillover theory as one of the earliest models of workplace misconduct resulting from gender-based interactions. Data collected in a telephone survey of Los Angeles workers supported a tendency for male workers to invoke sex-based stereotypes, which sometimes produced inappropriate sexual conduct, especially in male-dominated occupations and work groups. In male-dominated settings, gender became highly salient and activated social stereotypes that were inappropriate guides for workplace conduct. Later tests of the theory have not been as successful. Other researchers presented vignettes of ambiguous incidents and found that participants rated the behaviors more harassing when they occurred in integrated or nontraditional occupations. Sex-role spillover theory has successfully explained how workers label only some forms of harassment and only with certain stereotypes of women workers. Thus, the literature supports a role for gender distributions (i.e., the ratio of men to women in the workplace) in explaining harassment, but the exact form of that relationship is not at all clear.

Focusing on the situational side of the workplace, Louise Fitzgerald and colleagues theorized that sexual harassment is a function of both gender distribution and the extent to which the organization communicates tolerance of harassment. In one study examining women in a large West Coast utility company, these researchers report that workers who perceived the organizational climate to be tolerant of harassment and who participated in nontraditional gender occupations reported higher levels of harassment, job dissatisfaction, and psychological distress. Data from another organizational survey suggested that women who self-report harassment and those who experience behavior that others find harassing suffer from similar psychological harms.

Relying on traditional social psychological theory, John Pryor and his group posited that sexual harassment is the joint product of situation and person variables. In one study, they found that men who scored high on the Likelihood to Sexually Harass Scale (LSH) overestimated the co-occurrence of words power and sex on a paired-associates memory test. Other studies using subliminal primes found evidence for an automatic power and sex link in high LSH men. In still other research, men high in LSH and men primed with sexist ads, such as those seen on television, asked sexist questions of a female confederate during an ostensible job interview. Together, these studies showed how stimuli commonly encountered by workers can trigger uncontrollablecognitive responses in some men that produce harassing behavior.

Gender Differences in Sexual Harassment

One area in which a great deal of psychological research exists concerns judgment differences between men and women in cases of alleged harassment. With few exceptions, experiments, field studies, and surveys show consistent gender differences in judgments of harassment against women, with women using broader definitions and being more likely to label specific incidents as harassing. To explain the extant gender effects, one group of researchers presented scenarios to evaluators and produced a path analysis in which hostile sexism, observer self-referencing, and complainant credibility explained gender effects in harassment judgments. However, others found gender effects on harassment tolerance and on harassment judgments even after they controlled for hostile sexism.

Despite these findings, some authors have questioned the size and consistency of gender effects, and one meta-analysis of 83 investigations found significant but small effects for gender. Richard Wiener and colleagues suggested that the severity of the unwelcome conduct might explain the seemingly small effects. Researchers using experimental (scenario) methods with undergraduate participants reported that women rated ambiguous conduct more harassing, but perceived severe and benign instances similarly to men, while others surveying workers found gender effects with ambiguous, but not with severe or innocuous cases. A subsequent meta-analysis completed in 2001 took type and severity of harassment into account and found a moderately large overall gender effect (i.e., women found a broader range of behaviors harassing) and even stronger gender effects in studies using moderately severe hostile work environments. Furthermore, when Wiener and colleagues presented evaluators scenarios based on Ellison v. Brady and Rabidue v. Osceola Refining Co. and two video reenactments, women found more evidence of legally defined harassment.

With regard to intragender harassment, early work found that male workers experience at least as many potentially sexual harassing behaviors from other men as from women, but reacted less negatively to encounters with women. Furthermore, one study reported that men experience cross-gender social sexual conduct at work as seductive but same-gender behavior as harassing. Expanding on this work, Margaret Stockdale and colleagues showed that male-on-male harassment results, in part, from men’s motivation to enforce strict gender role norms on less masculine men. Data from a 1995 Armed Forces survey showed intragender harassment occurred mostly among men who treat other men harshly. That is, these male workers reject other men as too feminine and do not approach them sexually. While others have begun to study intragender harassment, the influence of sexual orientation of men in intragender cases remains largely untested.

Following up on their earlier work, Margaret Stockdale and colleagues presented approach and rejection scenarios in which males experienced unwanted sexual attention from women or other men. In the rejection scenarios only, female as compared with male observers rated higher sexual harassment using their own personal definitions of harassment. These results supported Richard Wiener and colleagues’ self-referencing hypothesis that people use themselves as reference points to judge the abusiveness of harassment complaints. Other research using vignette studies found that subjective ratings of how evaluators would perceive the egregious conduct if they were the object of the unwanted behavior explained the effects of observer gender. There is also support in the literature for self-referencing in another scenario study in which women (compared with men) found more evidence of male-on-male harassment.

Unlike the gender literature, a smaller and much less organized literature attests to the importance of cultural factors. Most interestingly, one cross-cultural scenario study involving eight nations conducted by Janet Sigal and colleagues found participants from individualist countries (e.g., the United States and Germany) were less likely than those from collectivist countries (e.g., Taiwan and the Philippines) to find a professor “guilty” of sexually harassing a female student. Other research manipulated a litigant race in a mock jury study of sexual harassment to find jurors (especially White males) more sympathetic to litigants of their own race.

While several studies have examined race and ethnicity as factors that qualify the way in which workers experience sexual and ethnic harassment, the results of those investigations are inconsistent, sometimes supporting conditional findings and sometimes not supporting the effects of these qualifying factors. Louise Fitzgerald and colleagues empirically developed and successfully tested an organizational model to explore the effects of race and ethnicity as explanations for outcomes of sexual harassment. Others have also built empirical models to identify some of the correlates of gender that help explain its effect on harassment judgments. Approaching the problem from a theoretical perspective, Richard Wiener and colleagues offer a social cognitive model of liability decisions to account for gender, race, and sexual orientation effects.

Social Cognitive Model of Sexual Harassment Judgments

The social cognitive model tries to integrate the law and psychology in this area. According to this model, sexual harassment judgments emerge from a two-stage model, with a preliminary judgment based on well-rehearsed and easily retrievable rules of categorization (i.e., sexual assault is harassment, telling dirty jokes is not). The initial judgment compares the complained after conduct to existing standards of behavior. If the conduct exceeds an offensiveness threshold, people perceive it as harassment with little cognitive activity (e.g., quid pro quo harassment, assault, and rape). If the conduct falls below a minimum offensiveness, people perceive it as nonharassing, again with little cognitive activity (e.g., compliments and personal talk). If the conduct falls between these norms, or if the observer is motivated to engage in further efforts, then a second, deliberative process ensues.

The model anticipates a second stage that triggers self-referencing to analyze more carefully the complained after incident(s). Here, the effects of the gender, race, and sexual orientation of the observer, alleged harasser, and complainant come into play. Because of prior experiences in and out of work, men and women, as well as people with different racial/ethnic backgrounds, cultural backgrounds, and sexual orientations, use different standards to judge harassment complaints. Women, ethnic minorities, and homosexuals use a broader definition because their vulnerable positions in society make them more sensitive to the role of social underdogs.

This model and prior research argue that people informed of the law and motivated to do so will test the unwelcomeness, severity, and pervasiveness of the incidents) to evaluate the accuracy of their initial harassment judgments. Observers use themselves as reference points to determine whether ambiguous social sexual conduct at work is unwelcome, severe, and/or pervasive. If the perceivers think that the unwelcome behavior would have seemed sufficiently pervasive or severe to themselves as targets, then they will conclude that it was harassing for the complainant, to the extent to which they perceive themselves to be similar to the complainant.

Findings from several studies by Richard Wiener and colleagues support the two-stage approach. In one study, 50 male and 50 female workers completed semi-structured interviews with card sorting and rating tasks. The resulting mental concept maps showed that women evaluated male harassers with attributes (i.e., intimidation, arrogance, and popularity) related to the harassers’ power and social aptitude, but men evaluated male harassers around the dimensions of responsibility and psychological adjustment attributes (i.e., strength, confidence, and being a bully). Women grouped female victims along dimensions of blameworthiness and assertiveness, relying heavily on security, upward mobility, and gullibility as victim attributes. Men used attributes of attractiveness, shyness, and anger to differentiate between helpless and blameful victims who were sexually aggressive or physically alluring. Statistical analyses (logistic regression) produced accurate gender classification for 86% of the sample using these attributes.

In another study, this research team presented videotapes of equal employment opportunity officers interviewing ostensible workers based on Rabidue v. Osceola Refining Co. and Ellison v. Brady fact patterns. Two hundred full-time workers applied either the reasonable person or reasonable woman legal standard and rated the complained after conduct on unwelcomeness, severity, pervasiveness, and harassment likelihood. The main effect for gender was significant across cases. However, self-referencing questions that asked respondents how they would have perceived the conduct had they been the complainant completely explained the gender effects. Several additional studies replicated the gender and self-referencing findings. In other results, participants who applied the reasonable person (as opposed to the reasonable woman) standard and those high (as opposed to low) in hostile sexism found less evidence of sexual harassment, regardless of gender or case. Most notably, use of the reasonable person legal standard offset the effects of hostile sexism so that the difference in harassment judgments between high and low hostile sexists disappeared under the reasonable woman standard.

In more recent efforts, this research team presented respondents with two scenarios (videotaped reenactments of Rabidue v. Osceola Refining Co. and Faragher v. City of Boca Raton, 1998), which depicted independent cross-gender allegations. A female complainant in the first set of allegations displayed aggressive, submissive, mixed, or neutral conduct. Most interestingly, perceptions of complainant aggressiveness in the priming sequence lowered likelihood of harassment judgments in the target sequence. The fact that hostile attitudes toward women triggered by one sequence of behavior influenced harassment judgments of later new facts supports the automatic internal standard component of the social cognitive model. Finally, hostile and benevolent sexism influenced judgments under the reasonable person but not under the reasonable woman standard. Current efforts are under way to examine the implications of the two-stage model for judgments that men and women make when males accuse other males of harassment in multicultural workplace scenarios. These efforts are looking more closely at the effects of ethnicity and sexual orientation as precursors to sexual harassment and other forms of discrimination in the workplace, schools, and housing markets. The extension of the social cognitive model of discrimination in these settings is important in our increasingly multicultural work, education, and living environments.

References:

  1. Burlington Northern v. White, 05-529 (U.S. S. Ct. June 22, 2006).
  2. Clark County School District v. Breeden, 532 U.S. 268 (2001).
  3. Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991).
  4. Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
  5. Fitzgerald, L., Drasgow, F., Hulin, C., Gelfand, M., & Magley, V. (1997). Antecedents and consequences of sexual harassment in organizations: A test of an integrated model. Journal of Applied Psychology, 82, 578-589.
  6. Fuller v. City of Oakland, 41 3d 1522 (9th Cir. 1995).
  7. Harris v. Forklift Systems, Inc., 114 S. Ct. 361 (1993).
  8. Meritor Savings Bank v. Vinson, 411 U.S. 51 (1986).
  9. Oncale v. Sundowner Offshore Services, 523 U.S. 15 (1998).
  10. Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986).
  11. Wiener, R. L., & Hurt, L. E. (2000). How do people evaluate social-sexual conduct: A psycholegal model. Journal of Applied Psychology, 85, 15-85.
  12. Wiener, R. L., Winter, R., Rogers, M., & Arnot, L. (2004). The effects of prior workplace behavior on subsequent sexual harassment judgments. Law and Human Behavior, 28, 41-61.

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