To identify instances of sexual harassment, the court may use a "reasonable woman" standard of what constitutes offensive behavior. This standard is based on the idea that women and men have...
To identify instances of sexual harassment, the court may use a "reasonable woman" standard of what constitutes offensive behavior. This standard is based on the idea that women and men have different ideas of what behavior is appropriate. What are the implications of this distinction? Do you think this distinction is helpful or harmful? Why?
To understand why this is a problematic standard, which it is, we need to look at a few different aspects of law, historically and contemporaneously. The law reflects and influences the society in which it functions, and given that, we hope that it will change with the times or sometimes, even more desirably, will change the times.
Once upon a time, in what we call tort law, which is an injury to person or property for which an individual can sue for damages, as opposed to a crime, which the state must prosecute, we had what was called "the reasonable man" standard. This posited that the parties in a law suit were held to the standard of what a reasonable man would do in the circumstances. By the time I became an attorney, the feminist movement had begun, and courts were gradually adopting a "reasonable person" standard, although all the old decisions still referenced the older standard, of course.
Many people may wonder what all the fuss was about, but think about this for a minute. Why would there be any difference between what a reasonable man or a reasonable woman would do in any given situation? This is quite insulting to women, I think. If I am in a car accident and someone sues me, I want to be judged as a reasonable or unreasonable person, not as a "lady driver," who might be held to a lesser or perhaps even a higher standard than a man. I do not and should not expect any more or any less consideration than a male would get in the same situation. And those females who would like to see a lower standard for themselves are harming the equality of women everywhere. This would be a concession that we were somehow lesser than males. This whole issue is the subject of controversy right now, in the military, as women seek to be in battle. Allowing them to be subject to lesser standards to allow them to be in battle is a grave mistake, aside from the risk to which a unit would be subject with people whose performance was substandard. The same standard should apply, so that there is never the impression or belief that women are inferior to men. This is true in the military and it must be true in the law.
Now let's fast forward to the advent of legislation that makes sexual harassment unlawful. People might say there should be a reasonable woman standard because it is women who are sexually harassed. But while it is true that the overwhelming majority of sexual harassment cases are filed by women, the law is gender neutral, and males can and do file sexual harassment charges, too. As more women gain more power and status in the workplace, these claims will rise, since sexual harassment is really about power, not sex. (See the film Disclosure.) Furthermore, the Supreme Court of the United States ruled explicitly that a claim for sexual harassment can be filed for same-sex harassment in Oncale v. Sundowner Offshore Services (1998).
Given all of the above, it is not reasonable for the law to distinguish what a reasonable woman as opposed to a reasonable man would make of someone's harassing behavior. This implies that women somehow have silly ideas and that the law must protect their weak sensibilities. And in fact, the largest factors in determining whether behavior is sexual harassment are whether or not the behavior was welcome or unwelcome and whether or not it was based on sexual content, not what a reasonable man or woman would think in the circumstances. It is completely unclear to me why a reasonable person standard cannot serve perfectly well to decide this.