Sexual Harassment Evaluation

Research examining juror decisions in sexual harassment has generally found a relationship between juror gender and liability decisions, in that women are more likely than men to consider sociosexual behavior sexual harassment. This relationship is mediated by several variables, including attitudes of hostile sexism, juror self-referencing, juror ratings of the credibility of the plaintiff, and the story constructed by the juror. Using a “reasonable woman” standard as opposed to a “reasonable person” standard has not been successful in attenuating the gender gap in decision making in sexual harassment cases. However, some research suggests that expert testimony addressing these issues may help jurors make better decisions. Expert testimony addressing the “abuse excuse” has been suggested by some experts as a defense strategy, but researchers have demonstrated that this defense is not only flawed but also ineffective with jurors. Some research suggests that jurors may need an expert to testify about the harms experienced by targets of sexual harassment because they underestimated those harms. In addition, researchers have begun to examine how jurors award damages in sexual harassment cases, and a preliminary study has demonstrated that they award compensatory damages incorrectly but are correct in their allocation of punitive damages.

Sexual harassment in the workplace is a serious legal problem that has only gained attention in the legal arena in the past few decades. There are two types of sexual harassment that are actionable in the U.S. legal arena: (1) quid pro quo sexual harassment, that is, behavior in which an employee directly threatens a subordinate employee with a sexual request that the subordinate must comply with to maintain employment, and (2) sexual harassment caused by a hostile work environment (HWE), that is, unwelcome behavior from any employee that is gender-based and that is severe and pervasive enough to negatively affect the victim’s working environment. Research investigating juror decisions in sexual harassment cases has focused on how jurors perceive different types of sexual harassment and has examined several different factors that affect jurors’ decisions in sexual harassment cases (e.g., juror gender, the legal standard used, the use of expert testimony). Researchers have also begun to examine how jurors award damages in sexual harassment cases.

Gender Effects on Juror Decisions in Sexual Harassment Cases

Research on jurors’ decisions in sexual harassment cases has consistently demonstrated that women are more likely than men to perceive more types of socio-sexual behavior in the workplace as sexually harassing. This effect has been consistent across several levels of ecological validity (e.g., participants acting as jurors, participants judging workplace scenarios), types of stimuli (e.g., written summaries of workplace situations, videotaped trials), and participant types (e.g., students, community members) and has been confirmed by two meta-analyses. In addition, researchers have found that the magnitude of the gender difference is moderated by the type of harassment perceived. Specifically, men and women make similar judgments about cases of clear-cut sexual harassment (e.g., quid pro quo, sexual coercion), but women are more likely than men to make judgments in favor of the plaintiff in cases in which the behavior is more ambiguous (e.g., HWE sexual harassment).

Mediating Variables in the Relationship between Gender and Verdict

Researchers have also examined mediating variables in the relationship between gender and verdict in sexual harassment cases. Several studies have shown a mediating effect of juror self-referencing (i.e., jurors imagining how they would have acted or what they would have done in the same situation) on the relationship between juror gender and verdict. In these studies, women were more likely than men to self-reference and, therefore, were more likely to find for the plaintiff. Research expanding on this relationship found that attitudes of hostile sexism mediated the relationship between gender and self-referencing, in that men were more likely than women to hold attitudes of hostile sexism, and therefore, men were less likely to self-reference than women. In addition, those jurors who were higher in self-referencing (typically women) also rated the plaintiff’s credibility higher than those who were low in self-referencing; those who rated the plaintiff’s credibility higher were more likely than those who rated the plaintiff’s credibility lower to render a judgment in favor of the plaintiff.

Further research replicated and extended this model to show that the content of expert testimony may affect jurors’ tendencies to self-reference. In this study, self-referencing was a significant mediator for jurors who heard traditional forms of expert testimony but not a significant mediator for jurors who heard expert testimony from a traditional plaintiff expert and a defense expert who included information about the plaintiff’s history of childhood sexual abuse (CSA) as a possible cause of the harassment. Thus, jurors were most able to relate to the plaintiff who had no history of CSA rather than to the plaintiff with a history of CSA and, therefore, only self-referenced in those conditions with no claims of prior CSA.

Other researchers used the story model for juror decision making as a basis for explaining jurors’ decisions in sexual harassment cases and accounting for the gender difference in juror decisions. These researchers showed that the story endorsed by the jurors (either proplaintiff or prodefense) mediated the relationship between juror gender and juror decisions. Women were more likely to endorse a proplaintiff story than men (who were more likely to endorse a prodefense story), and therefore, women were more likely than men to render a verdict for the plaintiff.

The Effect of Legal Standard on Juror Decisions

To find an employer liable for HWE sexual harassment, jurors are instructed that not only must the plaintiff show that she experienced discrimination based on gender, but she must also show that the behavior must have been so severe and pervasive that a reasonable person would believe that the conditions of employment were altered or that the working environment was hostile. This reasonable person standard is reflective of the unique nature of sexual harassment compared with most other tort claims—namely, that it involves a subjective component. Because of the gender differences in perceptions of sexual harassments, some courts have adopted a “reasonable woman” standard instead of the reasonable person standard traditionally used in sexual harassment cases.

The thought behind using a reasonable woman standard is that men and women differ in their perceptions of sexual harassment, so the decision maker should adopt the perspective of the victim (who is most likely a woman) when deciding whether the behavior in question is sexual harassment. Despite these good intentions, researchers have found little to no effect of legal standard on juror decisions in sexual harassment cases. Researchers have conducted several studies, varying in ecological validity and with different types of participants and have found little to no evidence that using a reasonable woman standard as opposed to a reasonable person standard diminishes the gender effect. It is possible that using the reasonable woman standard is ineffective in attenuating the gender gap in juror decisions because jurors may not notice the difference in standard. Scholars have also postulated that jurors may not understand the differences between a “reasonable person” and a “reasonable woman” or may ignore the reasonable woman standard in their decision making.

The Effect of Expert Testimony on Juror Decisions

Experts have suggested that perhaps expert testimony addressing the differences between the reasonable woman and reasonable person standards and/or expert testimony addressing gender differences in juror decision making about what behavior constitutes sexual harassment may help reduce the gender gap in decision making in sexual harassment cases. Some research suggests that this may be a successful strategy. In one study, researchers examined the effect of expert social framework testimony, addressing the effects of gender stereotyping on juror judgments. The expert testimony did not affect women’s judgments, but men were more likely to find for the plaintiff in conditions with expert testimony than in conditions without expert testimony. The gender gap was not completely eliminated, but this research shows the potential of expert testimony to aid juror decisions.

In addition to using expert testimony to help jurors make good decisions in sexual harassment trials, some researchers have suggested that experts should examine plaintiffs in sexual harassment cases for evidence of prior sexual abuse (which these experts have suggested may have caused the sexual harassment), termed the abuse excuse. Most scholars have rejected this hypothesis, demonstrating that it is based on flawed logic and is fundamentally false according to the empirical literature in the area. In addition to its flawed basis, testimony based on the abuse excuse does not have the expected effect on juror judgments in sexual harassment cases. In one study, jurors were less likely to find in favor of the defense if an expert testified using the abuse excuse argument compared with if the defense expert testified more traditionally (with an opposing expert) or did not testify at all.

Jurors’ Common Understanding of the Consequences of Sexual Harassment

Some experts have argued that plaintiffs should claim ordinary or garden variety damages (e.g., sadness, loss of enjoyment) rather than claiming injuries in sexual harassment cases (e.g., Posttraumatic Stress Disorder), so that the plaintiff’s mental health does not become a subject of controversy. Claiming an injury could result in a compelled mental health examination by a defense expert. However, claiming garden variety damages assumes that jurors have a general understanding of the harms experienced by targets of sexual harassment. Research comparing jurors’ and experts’ perceptions of the harms experienced by sexual harassment targets in several different workplace scenarios suggests that jurors consistently underestimate the amount of harm experienced by targets in both sexual harassment scenarios and other stressful workplace situations. Thus, such litigation strategies may be more detrimental than helpful to the plaintiff’s case.

Damage Award Decisions

If the defendant is found liable for sexual harassment, victims of sexual harassment may also recover both compensatory damages (designed to restore the victim to the state prior to the injury) and punitive damages (designed to punish the defendant for behavior that was particularly egregious and deter others from acting similarly). Thus, in addition to determining liability, the jury is also given the task of determining damages. Generally, jurors award damages appropriately in civil cases. However, given the difference between the psychological nature of the harm in sexual harassment cases and the physical harm alleged in most other civil cases, there may be a discrepancy in how jurors award damages, and researchers have just begun to investigate juror allocation of damages in sexual harassment cases. In one study, researchers demonstrated that jurors inappropriately awarded compensatory damages in a sexual harassment case, confusing harassment severity with pain and suffering. However, jurors did correctly award punitive damages as a function of the behavior of the organization. In addition, juror gender did not have an effect on damage award amounts, counter to the robust gender effect found in liability decisions.

References:

1. Blumenthal, J. A. (1998). The reasonable woman standard: A meta-analytic review of gender differences in perceptions of sexual harassment. Law and Human Behavior, 22(1), 33-57.
2. Gutek, B. A., O’Connor, M. A., Melancon, R., Stockdale, M. S., Geer, T. M., & Done, R. S. (1999). The utility of the reasonable woman legal standard in hostile work environment sexual harassment cases: A multimethod, multistudy examination. Psychology, Public Policy and Law, 5, 596-629.
3. Kovera, M. B., & Cass, S. A. (2002). Compelled mental health examinations, liability decisions, and damage awards in sexual harassment cases: Issues for jury research. Psychology, Public Policy and Law, 8(1), 96-114.
4. O’Connor, M., Gutek, B. A., Stockdale, M., Geer, T. M., & Melancon, R. (2004). Explaining sexual harassment judgments: Looking beyond gender of the rater. Law and Human Behavior, 28(1), 69-95.
5. Rotundo, M., Nguyen, D. H., & Sackett, P. R. (2001). A meta-analytic review of gender differences in perceptions of sexual harassment. Journal of Applied Psychology, 86, 914-922.
6. Wiener, R. L., & Gutek, B. A. (1999). Advances in sexual harassment research, theory and policy. Psychology, Public Policy, and the Law, 5, 507-518.

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