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Gender Myths v. Working Realities

Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law

Theresa M. Beiner
Copyright Date: 2005
Published by: NYU Press
Pages: 262
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  • Book Info
    Gender Myths v. Working Realities
    Book Description:

    Both the courts and the public seem confused about sexual harassment - what it is, how it functions, and what sorts of behaviors are actionable in court. Theresa M. Beiner contrasts perspectives from social scientists on the realities of workplace sexual harassment with the current legal standard. When it comes to sexual harassment law, all too often courts (and employers) are left in the difficult position of grappling with vague legal standards and little guidance about what sexual harassment is and what can be done to stop it. Often, courts impose their own stereotyped view of how women and men ought to behave in the workplace. This viewpoint, social science reveals, is frequently out of sync with reality.As a legal scholar who takes social science seriously, Beiner provides valuable insight into what behaviors people perceive as sexually harassing, why such behavior can be characterized as discrimination because of sex, and what types of workplaces are more conducive to sexually harassing behavior than others. Throughout, Beiner offers proposals for legal reform with the goal of furthering workplace equality for both men and women.

    eISBN: 978-0-8147-3942-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-x)
  4. Introduction: What Law Can Learn from Social Science about Workplace Sexual Harassment
    (pp. 1-14)

    Sexual harassment is a persistent workplace problem that is experienced by working women and, to a lesser extent, working men. For example, in its last study of sexual harassment in the federal workplace, the United States Merit Systems Protection Board (USMSPB) found that 44% of women and 19% of men reported having experienced some form of unwanted sexual attention at work in the two years prior to the survey. ¹ Other studies support the continued persistence of sexual harassment in the American workplace, with estimates that anywhere from 40% to 80% of working women have experienced sexually harassing behavior at...

  5. 1 Making a More Realistic Assessment of What Is Sufficiently Severe or Pervasive to Constitute Sexual Harassment
    (pp. 15-45)

    One of the most problematic elements of a sexual harassment claim is determining what behaviors actually reach a level that is actionable. Indeed, what constitutes sexual harassment at work in the public’s mind, according to legal and journalistic pundits, is anything but clear. This confusion is supported by human resources professionals, who say that the biggest problem they have with sexual harassment is that employees do not know what behaviors constitute sexual harassment.¹ However, is the conduct that constitutes sexual harassment really so unclear? Are people really at such a loss, at such a lack of understanding, about what constitutes...

  6. 2 The Reasonable Woman Standard: Much Ado about Nothing?
    (pp. 46-61)

    Early studies regarding the common understanding of what constituted harassing behavior concentrated on dissimilar perceptions based on gender. Study after study showed that men and women differ in their perceptions of sexual harassment. Perhaps not surprisingly, many studies found that women believed more behaviors to be harassing than did men.¹ These studies were so compelling that they led to one of the first influences of social science on the legal standard in sexual harassment cases: the development and acceptance by some courts of the “reasonable woman” standard to assess sexual harassment of women.² Since the first court acknowledged this standard,...

  7. 3 The Conundrum of “Unwelcome” Sexual Harassment
    (pp. 62-96)

    When Anita Hill brought forward (reluctantly) her allegations of sexual harassment against then Supreme Court nominee Clarence Thomas, three questions were repeatedly asked by the public and by members of the Senate Judiciary Committee: (1) “Why did she not come forward earlier?”; (2) “How could she continue to work for him?”; and (3) “Why did she remain friendly with him?”¹ In other words, if Professor Hill was really disturbed by this behavior (or if it really happened at all), she would have done something more direct, more affirmative at the time the events took place. Underlying these questions is a...

  8. 4 Conceptualizing Sexual Harassment as “Because of Sex”
    (pp. 97-144)

    Why sexual harassment occurs has not been the focus of court cases. This is not all that surprising. Courts are not in the business of describing and studying human interactions; they are, however, very much involved in human interactions when they rise to the level of recognized actionable wrongs. Thus, they make decisions that necessarily involve human interactions and motivations. That does not mean that the underlying theory of why a particular legally cognizable wrong happens does not enter into courts’ opinions; it just means that the courts usually wait for some other discipline—such as chemistry, biology, or social...

  9. 5 Reality Bites the Ellerth/Faragher Standard for Imputing Liability to Employers for Supervisor Sexual Harassment
    (pp. 145-179)

    Perhaps the legal standard that is most out of synch with the reality of sexual harassment in the workplace is the standard for imputing liability to the employer. It is not enough for a target to prove the harassment met the “severe or pervasive” standard. She also must establish that the employer is liable for this workplace conduct. The Court’s decisions inFaragher v. City of Boca RatonandBurlington Industries, Inc. v. Ellerth, while theoretically creating an affirmative defense for employers in cases of supervisory harassment, result in a significant burden on the harassed employee to come forward and...

  10. 6 Making Targets Whole and Deterring Defendants
    (pp. 180-200)

    Title VII is designed to accomplish two primary goals. First, to promote equality in the workplace by encouraging employers to treat employees the same regardless of protected characteristics. Since enactment of the Civil Rights Act of 1991, it does this in part by using potential damage awards to deter employers from engaging in discrimination. The second goal is one typical of tort-based schemes: to compensate victims and make them whole. However, damage awards under Title VII are limited by caps—limits on the amount of damages a plaintiff can receive based on the size of the employer. Thus, to the...

  11. 7 The New Sexual Harassment Claim
    (pp. 201-208)

    Throughout this book, I have picked apart the courts’ standards for evaluating sexual harassment claims, reevaluating each element through the lens of social science. Having taken a close look at certain aspects of the claim, it is fair to examine, at this point, what it all amounts to as well as to evaluate its ability to improve adjudication of such claims. Have the proffered revisions avoided many of the problems (and stereotypes) that the courts and litigants have encountered in this area of the law? Will courts still dismiss cases that look like sexual harassment to the average person? Will...

  12. Notes
    (pp. 209-252)
  13. Index
    (pp. 253-261)
  14. About the Author
    (pp. 262-262)