The Reasonable Woman Standard: Effects on Sexual Harassment Court Decisions

Author(s): Elissa L. Perry, Carol T. Kulik, Anne C. Bourhis

Source: Law and Human Behavior, Vol. 28, No. 1 (Feb., 2004), pp. 9-27
Published by: Springer
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Law and Human Behavior, Vol. 28, No. 1, February 2004 ((L2004)

The Reasonable Woman Standard:Effects on Sexual

HarassmentCourt Decisions
Elissa L. Perry,14 CarolT. Kulik,2and Anne C. Bourhis3

Somefederalcourtshaveuseda reasonablewomanstandardratherthclnthetraditional
reasonableman or reasonableperson standardto determinewhetherhostileenviron-
mentsexual harassmenthas occurred.The currentresearchexaminedthe impactof
the reasonablewoman standardon federal districtcourt decisions, controllingfor
otherfactorsfound to affectsexual harassmentcourtdecisions.Resultsindicatedthat
therewas a weak relationshipbetweenwhethera casefollowed a reasonablewoman
precedent-settingcase and the likelihoodthatthe courtdecisionfavored theplaintiff:
Theimplicationsof ourfindingsfor individualsand organizationsinvolvedin sexual
harassmentclaimsare discussed.
KEY WORDS: sexual harassment; reasonable woman standard; court decisions.

INTRODUCTION

Surveyresultsindicatethat highnumbersof womenreportexperiencingharass-

ment on the job, with estimatesrangingfrom 40 to 90°/Oof workingwomen (Peirce,
Rosen, & Hiller, 1997).The percentagesreportedvary dependingon the behaviors
experienced,the perpetratorof the harassment,and the organizationalcontext.The
LaborDepartmentestimatesthat Americanbusinesseslose almost $1 billion annu-
ally from absenteeism,low morale, and new employee trainingreplacementcosts
due to sexual harassment(Moore & Bradley,1997). However, some of the biggest
costs associatedwith sexual harassmentoccur when sexual harassmentallegations
resultin legal proceedings.Extended trialscan result in tremendousemotional and
financialcosts for both parties(Saltzman,1996). As a result,it is very importantfor
women allegingsexual harassmentand organizationsdefendingthemselves against
sexualharassmentchargesto understandthe factorsthat influencejudicialdecisions.
1Teachers College, Columbia University, New York, New York.
2Department of Management, University of Melbourne, Parkville, Victoria, Australia.
3Service de l'enseignement de la gestion des ressources humaines, Ecole des Hautes Etudes Commerciales,
Montreal, Quebec, Canada.
4To whom correspondence should be addressed at Teachers College, Columbia University, 525 West 120th
Street, Box 6, New York, New York 10027; e-mail: ep248@columbia.edu.

9
0147-7307/04/0200-0009/1
t 2004American Psychology-Law Society/Division 41of the American Psychology Association
10 Perry, Kulik, and Bourhis

Recently, the legal situation surrounding hostile environment sexual harassment

cases has become more ambiguous, as some federal courts replace the traditional rea-
sonable man or reasonable person standard with a reasonable woman standard. Al-
though some legal and organizational scholars have suggested that a gender-specific
standard is needed to compensate for gender differences in perceptions of harass-
ment, there is considerable controversy about whether an alternative legal standard
will have a significant impact on court decisions. This research provides an empirical
examination of the impact of the reasonable woman standard on federal judicial
decisions in cases of hostile environment sexual harassment.

The History of the Reasonable Woman Standard

Sexual harassment is a form of sex discrimination prohibited by Title VII of the
Civil Rights Acts of 1964 and the Civil Rights Act of 1991. In Meritor Savings Bank,
FSB v. Vinson (1986) the Supreme Court distinguished between two types of sexual
harassment. Quid pro quo harassment occurs when submission to the harassment is
a condition for employment or a basis for employment decisions (e.g., salary or pro-
motion decisions). Hostile work environment harassment occurs when the behavior
of organizational members (e.g., supervisors, coworkers, clients) interferes with an
employee's job performance or creates an intimidating, hostile, or offensive work
environment.
Because quid pro quo cases usually involve some kind of tangible or economic
harm to the victim, courts have generally been more receptive to plaintiffs bringing
quid pro quo claims of sexual harassment than to plaintiffs bringing hostile environ-
ment claims (Childers, 1993; Paetzold & O'Leary-Kelly, 1996). Hostile environment
cases tend to be more controversial than quid pro quo cases, in part because the
question of whether an environment is hostile is a perceptual one (Adler & Peirce,
1993; Childers, 1993). In Meritor Savings Bank, FSB v. Vinson (1986), the Supreme
Court outlined a four-part test for determining whether sexual harassment occurred
in hostile environment discrimination claims (Goodman-Delahunty, 1999). The con-
duct complained of must be sexual in nature. In addition, central in deciding hostile
environment sexual harassment claims, courts have to determine, by assessing the
totality of the circumstances, whether the particular activities engaged in by super-
visors, coworkers, or clients were unwelcome. Further, the unwelcome conduct must
be sufficiently severe or pervasive to alter the victim's conditions of employment
(Grider, Wesely, Bailey, & Gee, 1992). Finally, the court must determine whether the
employer knew or should have known of the alleged conduct.
Controversies have arisen concerning the criteria for determining whether the
alleged harassment is sufficiently severe or pervasive to constitute a hostile environ-
ment (Goodman-Delahunty, 1999). To make a determination of hostile environment
harassment most courts use a two-prong test that includes a subjective and an objec-
tive element (Gutek et al., 1999; Paetzold & O'Leary-Kelly, 1996; Wiener & Hurt,
1999). Courts determine whether the victim perceived the conduct as severe or per-
vasive (the subjective element) and then apply an objective reasonableness standard
(the objective element). Disagreements have arisen regarding both of these elements.
First, in their application of the subjective test, courts disagreed about whether it was
The Reasonable Woman Standard 11

necessary to show that the conduct seriously affected the psychological well-being of
the plaintiff. The Supreme Court addressed this conflict in Harris v. Forklift Systems,
Inc. (1993) and concluded that it was not necessary to show the hostile and abusive
environment was psychologically injurious.
Second, there has been disagreement regarding the objective reasonableness
standard that should be used to establish whether the harassment is sufficiently severe
or pervasive to constitute a hostile environment. A reasonableness standard defines
a minimum standard of behavior and imposes liability for what society perceives as
substandard conduct. The traditional legal standard used to determine culpability was
that of a reasonable man (Forell & Matthews, 2000). During the past 25 years most
courts have used more gender-neutral language, referring instead to a reasonable
person as the objective standard in hostile environment cases (Adler & Peirce, 1993;
Childers, 1993). For example, one court described its role as adopting "the perspective
of a reasonable person's reaction to a similar environment under essentially like or
similar circumstances" (Rabidue v. Osceola Refining Company, 1986, p. 620).
However, some courts questioned whether the use of a reasonable person stan-
dard was appropriate in hostile environment sexual harassment cases (Grider et al.,
1992). The earliest judicial recognition of the reasonable woman standard can be
found in the dissenting opinion of Judge Keith in Rabidue v. Osceola Refining Com-
pany (1986; Adler & Peirce, 1993). Also notable is the legal case Ellison v. Brady
(1991). Using the objective reasonable person standard, a district court dismissed
Ellison's sexual harassment complaint on summary judgment. When the case was
reviewed by the Court of Appeals, it reversed the dismissal suggesting that it was ap-
propriate to analyze harassment from the victim's (a woman's) perspective. Legally,
harassment is defined on the basis of conduct and its effects on the recipient (Riger,
1991). In cases using the reasonable woman standard, courts have concluded that
a hostile environment is created when a female plaintiff "alleges conduct that rea-
sonable woman would consider sufficiently severe or pervasive to alter conditions
of employment and create abusive working environment" (Ellison v. Brady, 1991,
p. 1346).
One justification for using a reasonable woman standard is the large body of so-
cial science research that suggests that men and women perceive harassment differ-
ently (see Blumenthal, 1998 and Rotundo, Nguyen, & Sackett, 2001 for meta-analyses
of this literature). Although some researchers have found no significant gender dif-
ferences in judgments of potentially harassing behaviors (Thomann & Wiener, 1987;
York, 1989), others have revealed that compared to men, women define sexual harass-
ment more broadly (Gutek, Morasch, & Cohen, 1983; Jones & Remland, 1992). Nar-
rative reviews of the literature (Gutek & O'Connor, 1995) and meta-analytic studies
(Blumenthal, 1998; Rotundo et al., 2001) conclude that although there are consis-
tent and significant gender differences in perceptions of sexual harassment they are
relatively small and influenced by a variety of other factors. Importantly, perceptual
differences are especially likely to be observed in hostile environment harassment
(Rotundo et al., 2001), with women being more likely to label less severe social-
sexual incidents (e.g., sexual innuendoes, sexual jokes) as harassment than men.
Legal scholars anticipated that the Supreme Court would resolve the controver-
sies surrounding the appropriate legal standard to use in hostile environment sexual
12 Perry, Kulik, and Bourhis

harassment cases when the Court agreed to hear Harris v. Forklift Systems Inc. (1993;
Johnson, 1993). However, the Supreme Court did not discuss whether a reasonable
person or a reasonable woman standard is appropriate (Currie v. Kowalewski, 1994),
nor did it provide a rationale for future standard choices (Abrams, 1995; Gutek &
O'Connor, 1995; Paetzold & O'Leary-Kelly, 1996). In fact, the Court noted that it
"need not answer... all the potential questions" raised by the case (Harris v. Fork-
lift Systems Inc., 1993, p. 228) and devoted most of its analysis to the question of
whether plaintiffs must demonstrate "serious psychological injury" to win their cases
(Abrams, 1995). As a result, there continues to be ambiguity about the legal standard
that U.S. courts should use in deciding cases of hostile environment sexual harass-
ment (Bernstein, 1997; Forrell & Matthews, 2000; Paetzold & O'Leary-Kelly, 1996),
although some authors suggest that the trend "is definitely toward a gender-specific
standard" (Levy & Paludi, 1997, p. 26).

Implications of the Reasonable Woman Standard

The federal courts' simultaneous use of multiple standards (reasonable woman
and reasonable person) provides a naturally occurring laboratory in which to study
the effects of perspective on third party judgments of sexual harassment. The avail-
able research evidence suggests that the perspective adopted by a third party can in-
fluence the extent to which a social-sexual interaction between a man and a woman is
perceived to be sexually harassing (Pryor & Day, 1988). In Pryor and Day's research,
(Pryor & Day, 1988) participants read a scenario in which a male actor initiated
an interpersonal exchange with a female target. Participants who were instructed
to adopt the perspective of the female target described the encounter as more ha-
rassing than participants who were instructed to adopt the perspective of the male
initiator, and they were more likely to hold the male actor personally accountable for
his behavior. Similarly, a legal standard that requires adopting a female perspective
may lead judges to view social-sexual behavior in the workplace as more sexually
harassing and to see organizations and their agents as more responsible for the
harassment.
However, the effect of the reasonable woman standard may have implications
for organizations above and beyond its effect on tangible court decisions (Wiener
& Hurt, 1999, 2000). The legal standard is also likely to influence how employers
address claims of sexual harassment in the workplace (Kulik, Perry, & Schmidtke,
1997). When an employee makes a claim of sexual harassment in an organization, a
third party decision maker has to examine the facts associated with the situation and
decide whether the employee was subjected to a hostile environment. If the employee
alleging sexual harassment uses an internal organizational grievance procedure, the
third party decision maker might be a manager, an ombudsperson, or a human re-
sources representative. The reasonable woman standard is now being integrated into
organizational training efforts to raise awareness of sexual harassment issues (Levy &
Paludi, 1997; Risser, 1999). These training programs instruct employees to explicitly
view social-sexual behavior from the target's perspective (Bresler & Thacker, 1993)
and use role play techniques to teach third parties how to adopt the target's view-
point (Thacker, 1992). If the reasonable woman perspective is found to influence the
The Reasonable Woman Standard 13

decisions made by third parties, organizations that train their supervisors and human
resource managers in using this perspective may be more aggressive in identifying and
disciplining social-sexual behavior in the workplace. The use of a reasonable woman
standard that compels workers to take the perspective of alleged victims may also
help workers recognize that unwelcome social-sexual behavior is harmful (Wiener &
Hurt, 2000). In addition, employees who have practiced using the reasonable woman
perspective may be less likely to engage in inappropriate social-sexual behavior.

Empirical Research Related to the Reasonable Woman Standard

The reasonable woman standard has passionate advocates and equally passion-
ate critics, who disagree on important questions concerning the effects of a reason-
able woman standard. Will a reasonable woman standard increase the likelihood
that female sexual harassment plaintiffs win cases in court? Advocates hope that a
reasonable woman standard will encourage judges to examine the facts of the case
from the victim's (usually a female's) perspective (Gutek & O'Connor, 1995) and
become more sensitive to legitimate sexual harassment complaints, resulting in more
positive outcomes for plaintiffs than a reasonable person standard in cases of hostile
environment sexual harassment. However, legal and organizational scholars point
out that a reasonable woman standard does not guarantee victory for the plain-
tiff (Bernstein, 1997). Johnson (1993) argued that several cases using a reasonable
woman standard (e.g., Andrews v. City of Philadelphia, 1990) would have reached
the same conclusions had a reasonable person standard been applied.
Unfortunately, only a limited number of studies have attempted to address the
effect that a reasonable woman standard would have on court decisions. Wiener and
his colleagues (Wiener, Watts, Goldkamp, & Gasper, 1995; Wiener, Hurt, Russell,
Mannen, & Gasper, 1997; Wiener & Hurt, 2000) have conducted a stream of research
investigating the effect of legal standard on judgments of sexual harassment made
by nonlegal personnel (i.e., students and full-time employees). The earliest studies
(Wiener et al., 1995, 1997) presented students with two fact patterns drawn from legal
cases and asked the students to assess the likelihood that the plaintiff had experienced
sexual harassment using either a reasonable person or a reasonable woman standard.
Minimal effects of standard were found, and in the Wiener et al. (1997) study, only
50% of the male respondents were able to accurately identify the legal standard they
had been assigned. Suggesting that previous manipulations of the legal standard
had been weak, Wiener and Hurt (2000) developed videotapes presenting the same
fact patterns and ending with affirmative action officers who explained the legal
standards in detail. This research did find an effect of legal standard-participants in
the reasonable woman condition described the behavior as more likely to constitute
sexual harassment than did participants in the reasonable person condition.
A second stream of research by Gutek and her colleagues (Gutek et al., 1999)
also manipulated legal standard. These researchers conducted five studies based
on the same fact pattern. The studies used a wide range of participants (students,
employees, juror pool participants) and presented the fact pattern using a wide
range of media (narrative scenarios, scenarios paired with pictures, a videotrial).
The manipulation of legal standard affected participants' ratings of a hostile work
14 Perry, Kulik, and Bourhis

environment in only two studies and Gutek et al. (1999) pointed out that even in these
two studies the legal standard had very little impact, accounting for a maximum of
2% of the variance in the dependent measure.
Therefore, the little empirical research that has been conducted has found mixed
effects of the reasonable woman standard on laypersons' assessments of a situation
as constituting sexual harassment. Moreover, in at least some of the studies in which
effects have been found, these effects have been relatively small (Gutek et al., 1999).
However, it is important to note the limitations of the previous research in its ability
to generalize to the legal setting. First, the research has thus far relied on students,
employees, or potential jurors; the research has not explored the effect of standard on
the decision making processes of actual judges, who might be more knowledgeable
about the implications of a legal standard and/or more motivated to incorporate
the standard into their decision making. In addition, the research has used a limited
number of fact patterns as stimuli. Although these fact patterns were based on legal
cases, and the researchers made strong attempts to present the fact patterns in ways
that would reflect or be consistent with an actual trial, there may be elements of the
particular fact patterns that make them less likely to be affected by a legal standard
manipulation (Gutek et al., 1999).
A number of researchers have called for an improvement in the ecological va-
lidity of sexual harassment research (e.g., Goodman & Delahunty, 1998; Gutek &
O'Connor, 1995;Wiener et al., 1997). Specifically, Blumenthal (1998) noted that more
externally valid research was necessary to examine how triers of fact make decisions
in cases of sexual harassment. We were able to identify only two papers that tried to
address empirically the effect of the reasonable woman standard on actual triers of
fact. Using a simple box score analysis, Childers (1993) concluded that a reasonable
person standard is more likely to result in unfavorable decisions for the plaintiff,
whereas a reasonable woman standard is more likely to result in favorable decisions.
Similarly, on the basis of a chi-square analysis, Juliano and Schwab (2001) concluded
that plaintiffs had slightly higher success rates in cases in which the courts adopted
the reasonable woman standard compared to the reasonable person standard. Unfor-
tunately, Childers' analysis (Childers, 1993) did not use generally accepted measures
of statistical significance and neither study examined the effect of standard control-
ling for other factors (e.g., severity of the harassing behavior, presence of witnesses)
demonstrated to influence the outcomes of sexual harassment cases in previous re-
search (Terpstra & Baker, 1992). As a result, the effect of the reasonable woman
standard on court decisions remains unclear.

The Current Research

This study analyzed the impact of a reasonable woman standard on the out-
comes of federal district-level cases of hostile environment sexual harassment af-
ter controlling for other factors (e.g., severity of the harassing behavior, presence
of witnesses) found to influence sexual harassment court decisions (Terpstra &
Baker, 1992). The reasonable woman standard may encourage the judge to take
the perspective of a woman and become more favorably disposed to a female plain-
tiff. Thus we hypothesize that when other factors (e.g., severity of the harassing
TheReasonable
WomanStandard 15

behavior, presence of witnesses) are held constant, hostile environment sexual ha-
rassment cases heard under a reasonable woman standard will be more likely to
result in decisions that favor the plaintiff than cases that are not heard under this
standard.

METHODS

Data and Sample

The data used in this study are part of a larger dataset containing information
associated with cases of hostile environment sexual harassment heard by U.S. district
and circuit courts between 1981 and 1996. An initial set of 786 cases was identified
through a Lexis/Nexis search on the 1981-96 time period using the key words "hostile
environment" paired with either "sexual harassment" or "sex discrimination." Case
data were obtained from Lexis/Nexis and from the Bureau of National Affairs' Fair
Employment Practices Cases, Federal Supplement, Federal Reporter, and Employment
Practices Decisions, which reproduce the entire text of the court's opinion for each
published case. On the basis of these sources, we eliminated cases that were not
filed under the Civil Rights Acts of 1964 or 1991 (e.g., cases filed under state law),
cases not directly pertaining to sexual harassment (e.g., wrongful discharge cases
brought by individuals accused of sexual harassment), cases that did not result in a
trial (e.g., pending cases, dismissed cases, cases decided by summary judgment), and
cases involving quid pro quo harassment only (i.e., no claim of hostile environment).
This reduced the initial sample to 290 cases. The published opinions associated with
these cases were coded by two coders (described below).
Not all of these 290 cases were relevant to our research question. Our primary
interest was in understanding how different standards would influence judicial deci-
sions in sexual harassment cases. This question is best addressed using district-level
cases, where judges consider issues of fact and make a decision in a dispute (Roehling,
1993). At upper levels of the court system (cases heard by appellate courts and
the Supreme Court), judges primarily decide issues of law and set policy for future
cases. Therefore, we eliminated appellate and Supreme Court cases from the sample
(n = 105).
Although some courts recognized causes of action for hostile environment in the
early 1980s, the hostile environment form of sexual harassment was not recognized
by the Supreme Court until the Meritor Savings Bank, FSB v. Vinson case (1986;
Ashraf, 1992). Therefore, we eliminated cases that were heard prior to the Meritor
decision date (June 19, 1986; n = 47).
Next, because we were interested in how the reasonable woman standard in-
fluences judges' decisions in sexual harassment cases, we eliminated cases that had
been tried by juries (n = 6). The reasonable woman standard is only applicable to
cases involving a female victim so we also eliminated cases in which the only plaintiff
was male (n = 3). Finally, following Terpstra and Baker (1992), we eliminated cases
if a corresponding case with a later decision date appeared in the sample (n = 1) and
cases which did not reach a final decision on the hostile environment claim (n = 4).
This resulted in a final N = 124.
16 Perry, Kulik, and Bourhis

Data Coding
All variables were obtained from opinions published on Lexis/Nexis or in the
Bureau of National Affairs' Fair Employment Practices Cases, Federal Supplement,
Federal Reporter, or Employment Practices Decisions.
Case opinions can vary dramatically in length. Within our sample, opinions
ranged from 1-2 pages of text to 155 pages of text, with many cases in the 40-50 page
range. Two individuals coded an initial set of 104 cases (36% of the complete dataset).
The primary coder was a doctoral student in Business Administration, with extensive
coursework in Human Resource Management and Business Law. For reliability pur-
poses, we enlisted a secondary coder who was completing a joint JD and Labor and
Industrial Relations Masters degree program. To estimate reliability between the
two coders, we used Ir (Perreault & Leigh, 1989) because this measure overcomes
problems associated with Cohen's kappa. For example, unlike kappa, and appro-
priate in the context of our data, the Ir index does not require a priori knowledge
of the distribution of observations. Across our measures, Ir ranged from .78 (Docu-
ments) to .98 (Court decision). Perreault and Leigh (1989) suggest that a reasonable
standard for Ir might be .70 in exploratory research, and .80 in other research ap-
plications. Coders discussed discrepancies in their independent coding and clarified
the codesheet and decision rules. All discrepancies were reviewed, researched, and
resolved by the coders for the 104 cases in the final sample. The primary coder then
coded the remaining 186 cases. Of the 124 cases in the final sample, 73% (n = 91)
were coded by both coders.

Dependent Measure
Court Decision

Judges' decisions regarding the hostile environment claim in each case were
categorized as for the plaintiff (1) or for the defendant (0). Reliability on this variable
was Ir = .98 (coder agreement = 98%).

Control Variables
Case Characteristics
Previous research has identified several variables that influence court decisions
in cases of sexual harassment (Knapp & Heshizer, 2001; Terpstra & Baker, 1988,
1992). Because of the limited information provided in the case opinions and consis-
tent with previous research, we used Terpstra and Baker's dichotomous (0/1) coding
scheme (Terpstra & Baker, 1992) to code cases in terms of: Frequency (coded as
1 if behavior occurred on more than one occasion and 0 otherwise, Ir = .96 and
coder agreement = 96%); Severity (coded as 1 if the harassment was severe in-
cluding sexual assault/rape and unwanted physical contact and 0 otherwise, Ir = .92
and coder agreement = 92%); Status (coded as 1 if the alleged harasser held a
supervisory position and 0 otherwise, Ir = .95 and coder agreement = 95%); Conse-
quences (coded as 1 if the case involved tangible adverse job-related consequences
The Reasonable Woman Standard 17

such as discharge, demotion, or denial of promotion and 0 otherwise, I, = .92 and

coder agreement = 92%); Witnesses (coded as 1 if the case opinion noted that there
were witnesses to the alleged harassment and 0 otherwise, I, = .84 and coder agree-
ment = 85%); Documents (coded as 1 if the case opinion noted that there were
documents supporting the alleged harassment and 0 otherwise, I = .78 and coder
agreement = 80%); Management reasons (coded as 1 if management cited business-
related reasons such as economic motives or performance considerations for ad-
verse effects on the plaintiff's conditions of employment and 0 otherwise, Ir = .80
and coder agreement = 82%); Notification (coded as 1 if the case opinion noted
that the plaintiff had reported harassment to management before filing charges
and 0 otherwise, Ir = .89 and coder agreement = 90%); and Organizational action
(coded as 1 if the case opinion noted that the organization took remedial or inves-
tigative action in response to the harassment and 0 otherwise, Ir .89 and coder
agreement = 90%).
Judge Gender
The sex of the judge presiding over each case was determined from biographies
appearing in the Judicial Staff Directory, Who's Who in American Law, the Judi-
cial Yellow Book, and the Almanac of the Federal Judiciary.5 One legal argument
for the adoption of a reasonable woman standard is that most judges are male and
therefore less able to fully appreciate the female sexual harassment victim's perspec-
tive (Ashraf, 1992; Treger, 1993). Therefore, we anticipated that judge gender might
influence court decisions.
Year of Case
Roehling (1993) noted that policy capturing studies of legal decisions typically
do not address the evolving nature of the law. We included the year of the case
decision as a continuous control variable to capture any severity/leniency effects or
legal principles that might vary with time.

Predictor Variables
Standard
We used two alternative methods of coding legal standard. First, we used in-
formation contained in the published case opinion to identify whether the judge
explicitly reported using a reasonable woman standard. This variable (Explicit stan-
dard) was coded 1 if the case opinion specified that the judge had used a reasonable
woman standard. We also coded as 1 cases that used an explicit "reasonable vic-
tim" or "reasonable person of the same sex" standard. Where the alleged victim is
a woman, the "reasonable person of the same sex" and the "reasonable woman"
standards are synonymous (Achampong, 1999). In addition, although the reason-
able woman and reasonable victim standards are conceptually different, both the

5Sex was inferred from the judge's name and the sex-specific pronouns used in the biographies. In some
cases, the name of the judge's spouse and gender specific club memberships (e.g., a women's law associ-
ation) also provided information relevant to the judge's sex.
18 Perry, Kulik, and Bourhis

courts and legal scholars have frequently used these two terms interchangeably. In
practice, because women comprise the majority of victims of sexual harassment, a
reasonable victim in most sexual harassment cases will be a woman (Childers, 1993;
Johnson, 1993; Paetzold & O'Leary-Kelly, 1996). Only one case in our sample em-
ployed a reasonable victim standard and this case also employed a reasonable woman
standard.
The use of a reasonable person standard is normative. As Ashraf (1992, p. 483)
noted, "Traditionally, to determine whether a cause of action existed for sexual ha-
rassment, courts used the 'reasonable person' standard."The reasonable person stan-
dard is currently ". .. used in the majority of sexual harassment cases involving a hos-
tile work environment" (Glidden, 1992, p. 1828). Further, legal commentators have
argued that in the absence of factors explicitly motivating a decision maker to apply a
woman-based standard, a male perspective is likely to dominate (Forell & Matthews,
2000). Therefore, cases that did not explicitly use a reasonable woman, reasonable
victim, or a reasonable person of the same sex standard were coded 0. In many of
these cases the opinion included an explicit reference to the use of a reasonable per-
son or reasonable man standard. Whenever possible, the coders' classification of the
standard used in a particular case was verified using legal sources (Adler & Peirce,
1993; Childers, 1993; Glidden, 1992; Grider et al., 1992; Johnson, 1993). Reliability
on this variable was Ir = .97 (coder agreement = 97%).
The second coding method took into consideration legal precedents influenc-
ing the standard judges should be using in each case. The doctrine of stare decisis
requires that precedents generally be followed by courts of the same or lower rank
(Roehling, 1993). Kelso noted, "... the lower court is ordinarily obliged to follow
the decisions from the highest court within the jurisdiction and has no discretion
not to follow those decisions. A judge of the lower court who deliberately refuses
to follow a higher court's precedents may even be guilty of judicial misconduct"
(1999, p. 11). Currently, lower courts are expected to use the legal standard de-
rived from higher court rulings within their circuit (Lengnick-Hall, 1995), and ".... at
least three circuits have explicitly adopted the 'reasonable woman' standard for de-
termining actionable hostile environmental sexual harassment" (Paetzold & Shaw,
1994, p. 681). Within these three circuits (the Third, the Ninth, and the Sixth), three
cases (Andrews v. Philadelphia, 1990; Ellison v. Brady, 1991; Yates v. Avco, 1987)
are recognized in the legal literature as establishing the use of a reasonable woman
standard for determining whether an actionable claim of sexual harassment exists
(e.g., Ashraf, 1992; Bernardin, 1994; Glidden, 1992; Kirn, 1993; Wiener & Hurt,
1999).
Factors that influence an opinion but that do not involve new policy decisions
may not be discussed in opinions (Roehling, 1993). In particular, written opinions
generally do not include all of the details regarding precedents; judges rarely discuss
the reasoning behind a precedent or explain why a precedent should be followed
(Marvell, 1978). Consequently, cases that postdate a reasonable woman precedent
are likely to apply a reasonable woman standard even if the legal standard is not
explicitly stated in the written opinion. Therefore, we created a variable (Precedent)
that took into account precedents operating within the Third, the Ninth, and the
Sixth circuits. Precedent was coded 1 if the case followed a precedent-setting case
The Reasonable Woman Standard 19

(Andrews v. Philadelphia, 1990; Ellison v. Brady, 1991; Yates v. Avco, 1987) in its
circuit. For example, a district-level case in the Ninth Circuit would be coded as
Precedent = 1 if its decision date postdated the decision date (January 23, 1991) of
the precedent-setting case in the Ninth Circuit (Ellison v. Brady, 1991). For cases
that did not follow a reasonable woman precedent, Precedent was coded 0.

RESULTS

Descriptive Analyses
Table 1 presents the means for each variable and the correlation matrix. Con-
sistent with previous research (Terpstra & Baker, 1992), judges were more likely to
find in favor of defendants; only 36% of the trials resulted in decisions in favor of
the plaintiff. Thirteen cases (10%) were categorized as using an explicit reasonable
woman standard (Explicit standard = 1), and 18 (15%) were categorized as following
a reasonable woman precedent-setting case (Precedent = 1).

Logistic Regression Analyses

We hypothesized that cases heard under a reasonable woman standard would be
more likely to result in decisions that favor the plaintiff than cases not heard under
this standard. Logistic regression analyses were conducted to assess the independent
effects of Explicit standard and Precedent on Court decision after controlling for
case characteristics, Judge gender, and Year of case. Model 1, the baseline model,
included the nine case characteristics, Judge Gender, and Year of case. Model 2
added the Explicit standard dummy variable to the baseline model. Model 3 added
the Precedent dummy variable to the baseline model. Results are shown in Table 2.6
Model 1 including the nine case characteristics, Judge gender, and Year of case
was significant (Model X2 = 42.16, 12, p < .01) and a number of coefficients were
significant in this model. Plaintiffs were more likely to win their case if the harassment
was severe (Severity), management did not provide business-related reasons for ad-
verse effects on the plaintiff's conditions of employment (Management reasons), the
plaintiff notified management prior to filing charges (Notification), or the organi-
zation failed to take investigative or remedial action (Organizational action). The
addition of the Explicit standard variable in Model 2 was not significant (Improve-
ment x2 = 0.84, 1, p = ns) and the coefficient was not significant in this step. The
Precedent variable had a stronger effect, although neither the addition of the Prece-
dent variable in Model 3 (Improvement X2 = 2.92, 1, p < .10), nor its coefficient
(b = 1.15, p < .10) reached the conventional p < .05 level of statistical significance.
exp(b) is the estimated odds ratio for those who are a unit apart on the predictor
variable, net of other predictors in the model (DeMaris, 1995). For the Precedent
variable, exp (1.15) = 3.17, indicating that, controlling for the other variables in the

6The main logistic regression analyses reported in the paper were repeated removing the 10 cases heard
by female judges. Results of these analyses revealed a pattern similar to the analyses reported in the
paper. These analyses are available from the authors upon request.
 Table 1. Means and Correlations
Variables Meansa 1 2 3 4 5 6 7 8 9
1. Court decision 0.36
2. Frequency 0.96 .16*
3. Severity 0.60 .31*** .08
4. Status 0.77 .09 -.01 .11
5. Consequences 0.88 .02 -.08 .05 .16*
6. Witnesses 0.38 .21** .08 .17* .14 .04
7. Documents 0.17 .15* .09 .15* -.01 .04 -.22**
8. Management reasons 0.57 -.33*** -.01 -.21** -.08 .13 -.10 -.09
9. Notification 0.60 .24*** .17* .23** -.29*** -.0 .13 .33*** -.08
10. Organizational action 0.37 -.16* .16* .09 -.18** -.18* -.02 .10 .09 .39***
11. Judge gender 0.08 -.04 .06 -.06 .02 .02 .07 .10 .20** .12
12. Year of case 90.20 .08 -.05 -.04 -.11 .07 .21** .12 -.12 .24***
13. Explicit standard 0.10 .07 .07 -.04 .06 -.12 .11 .13 -.02 .01
14. Precedent 0.15 .07 -.15 -.08 -.05 .15* .01 -.13 .03 -.08
aVariables were dummy-coded (except for year of case for which only the last two digits are indicated); means can be interpr
N = 124
*p < .10. **p < .05. ***p < .01.
The Reasonable Woman Standard 21

Table 2. Hierarchical Logistic Regression

Baseline model Explicit model Precedent model
Variables b SE b SE b SE
Constant -13.05 26.60 -11.97 26.55 -12.41 25.14
Frequency 7.51 25.27 7.47 25.19 8.12 23.70
Severity 1.06** 0.51 1.08** 0.51 1.10** 0.52
Status 0.41 0.59 0.36 0.60 0.54 0.62
Consequences -0.10 0.69 0.02 0.72 -0.29 0.71
Witnesses 0.41 0.48 0.37 0.49 0.36 0.49
Documents 0.06 0.61 0.03 0.62 0.19 0.61
Management reasons -1.21** 0.47 -1.23** 0.48 -1.29*** 0.49
Notification 1.50** 0.59 1.56*** 0.59 1.60*** 0.60
Organizational action -1.53*** 0.54 -1.58"** 0.55 -1.46*** 0.54
Judge gender -0.11 0.85 -0.11 0.84 -0.10 0.84
Year of case 0.05 0.09 0.03 0.09 0.03 0.09
Explicit standard 0.70 0.76
Precedent 1.15* 0.68
Model chi-squareb 42.16*** 43.00** 45.08***
Improvement chi-squarec 0.84 2.92*
Classification accuracy 78.20% 77.40% 76.60%
Note. N = 124.
aThe logistic regression predicts the likelihood of a judicial decision for the plaintiff.
bThe model chi-square is defined as -2 times the difference between the log like-
lihoods of the estimated model and the model containing only the intercept. This
statistic is distributed as chi-square, with degrees of freedom equal to the number of
covariates in the estimated model. -2 Log likelihood = 162.46 for the intercept only
model.
CTheimprovement chi-square tests whether an incrementally nested model adds ex-
planatory power and is based on the log likelihood difference between the baseline
model (controls only) and the nested model (e.g., addition of the Explicit standard
dummy variable), with degrees of freedom equal to the number of additional covari-
ates.
*p < .10. **p < .05. ***p < .01.

model, the odds of winning a case were 3.17 times as large for plaintiffs in cases
following a reasonable woman precedent as they were for plaintiffs in cases not fol-
lowing a reasonable woman precedent. Thus, our hypothesis received some albeit
weak support. After controlling for other variables likely to influence court decisions,
we found a weak relationship between legal standard and court decision, but only
when legal standard was operationalized using the Precedent variable.

Probability Analysis
Our logistic regression equations predict the log odds (logit) of a plaintiff win-
ning a sexual harassment claim. The "odds" is a ratio of probabilities: in our case, the
probability of a plaintiff winning her case divided by the probability of the plaintiff
not winning her case. However, it can also be useful to forecast the probability of
plaintiffs winning cases, assuming a given set of case characteristics. Therefore, we
transformed the log odds into probabilities using procedures described by DeMaris
(1995). First, we entered the mean values of our control variables into the Model
3 logistic regression equation (see Table 2) and calculated the estimated log odds
22 Perry, Kulik, and Bourhis

twice: once for the situation in which the Precedent variable took on a value of 0
(i.e., for cases that did not follow a precedent) and once for the situation in which
the Precedent variable took on a value of 1 (i.e., for cases that followed a precedent).
Next, to obtain probability values, we calculated the estimated odds by exponenti-
ating the log odds obtained in the first step, exp(log odds). Finally, the probability
of a plaintiff winning her case = odds/(1 + odds). When cases are not heard under a
reasonable woman standard, the probability that the decision will favor the plaintiff
is 24%. However, the probability of a decision favoring the plaintiff when the case
follows a reasonable woman precedent-setting case is 50%.

DISCUSSION

Our results suggest that hostile environment sexual harassment cases that oper-
ated under a reasonable woman standard were somewhat more likely to be decided
for the plaintiff than cases that did not operate under a reasonable woman standard.
After controlling for case characteristics, judge gender, and the year in which the
case was decided, the Precedent variable had a positive, but weak, impact on court
decisions. These results suggest that the reasonable woman standard could have an
impact on future court decisions. In an average hostile environment harassment case
(assuming mean values on our control variables), a plaintiff's probability of winning
is only 24% if the decision is not influenced by a reasonable woman precedent. How-
ever, if the case follows a reasonable woman precedent-setting case, the plaintiff's
probability of winning increases to 50%.
It is important to note that the effect of legal standard approached significance
only when we considered whether the case followed a reasonable woman precedent-
setting case (Precedent variable). When we limited our focus to the explicit use of the
reasonable woman standard, no significant effect of legal standard was found. This
pattern of results may be due to the small number of cases using an Explicit standard
(n = 13). The results highlight the importance of considering the role of precedents
in court decisions.
Although our primary interest in conducting this research was to investigate the
effects of legal standard, our results also partially replicate some previous research
on case characteristics that influence legal outcomes in cases of sexual harassment
(Knapp & Heshizer, 2001; Terpstra & Baker, 1992). Results of the logistic regres-
sion analysis revealed that a number of case characteristics (Severity, Management
reasons, Notification, and Organizational action) influenced the outcomes of federal
district-level sexual harassment cases. Significant findings for Severity, Notification,
and Organizational action are consistent with the law. One determination of hostile
environment harassment is that the behavior is sufficiently severe or pervasive to
alter the victims' conditions of employment. In addition, in determining employer
liability, the Supreme Court recently clarified that employers must show that they
took reasonable care to prevent and immediately correct sexual harassing behavior.
Employers can also avoid liability if employees unreasonably fail to take preven-
tative or corrective employer provided opportunities (Hogler, Frame, & Thornton,
2002; Juliano & Schwab, 2001). Finally, we found no effect of judge gender on court
The Reasonable Woman Standard 23

decisions. Although it would have been informative to explore the interaction be-
tween judge gender and legal standard, this was not feasible because of relatively
small number of cases heard by female judges in our sample.

Implications
First, we consider the implications of our findings for employees and their
lawyers who are considering filing a legal complaint of sexual harassment. Clearly, it
would be advantageous for a plaintiff to have her case heard in a circuit in which the
reasonable woman standard was established by legal precedent. The plaintiff and her
lawyer have no control over the legal standard used to decide her case, as cases must
be heard in the district or circuit having jurisdiction over the claim. However, the le-
gal standard used in the relevant jurisdiction may have implications for lawyers' legal
strategies and their willingness to bring cases of hostile environment harassment to
trial. Circuits that use a reasonable woman standard send "a message to employers
that courts are taking an increasingly aggressive stance against sexual harassment
in the workplace..." (Westman, 1992, p. 819). Lawyers for plaintiffs may be more
willing to take sexual harassment cases to trial if the odds of a positive outcome
for their clients are improved. Consistent with this, Marvell (1978) found that when
lawyers were asked what factors lead them to file an appeal, "the factor mentioned
much more often than others was the chance of success..." (p. 303). This suggests
lawyers who try cases in courts that use the reasonable woman standard may be more
willing to try cases that they would otherwise deem too weak to take to trial. Our
research also suggests some variables that a plaintiff and her lawyer should consider
to realistically assess the strength of the plaintiff's case before filing (e.g., whether
she previously notified the organization of the harassment).
Second, our results have implications for the judiciary and the law. The adoption
of the reasonable woman standard is controversial. However, to this point, discus-
sions concerning the effects of using this standard have been speculative. The finding
that legal standard has some influence on federal sexual harassment court decisions
is important for those who support as well as those who do not support the use of
this standard. This study suggests that this standard increases the odds that plaintiffs
will win their cases. Courts are currently using different standards that have differ-
ent implications for court decisions, suggesting a need for the judiciary to develop a
consistent standard for hostile environment harassment.
Third, we consider the implications of our findings for organizations. As courts
increase their use of the reasonable woman standard, organizations may wish to incor-
porate this standard into their organizational grievance procedures. The reasonable
woman standard appears to lower the threshold that a third party uses to decide
whether an incident is sexual harassment (Wiener & Hurt, 2000). If organizations
do not incorporate a parallel standard into their internal grievance procedures, they
may choose not to act on complaints that are eventually found by the courts to con-
stitute illegal sexual harassment. In addition, sexual harassment awareness training
that trains organizational members to view behavior from the perspective of a rea-
sonable woman may also help organizations successfully manage sexual harassment
complaints and reduce vulnerability to later lawsuits.
24 Perry, Kulik, and Bourhis

Limitations and Future Research

We have addressed many of the issues Roehling (1993) identified as problematic
in policy capturing studies of legal outcomes. For example, Roehling (1993) expressed
concern that previous research has not distinguished between jury and nonjury cases,
cases heard by district and circuit courts, or quid pro quo and hostile environment
harassment. To avoid these problems, we limited our analyses to bench trials ad-
dressing hostile environment harassment and focused only on district-level cases. In
addition, by beginning our analysis after the first recognition of hostile environment
harassment by the Supreme Court, exploring the role of precedents, and statistically
controlling for the year in which cases were heard, we addressed concerns about
the evolving nature of the law. Despite these efforts, it is important to note several
limitations associated with this research.
Our sample of cases may not be representative of the population of sexual ha-
rassment claims. The majority of lawsuits are settled out of court and never result
in a final judicial decision (Juliano & Schwab, 2001). In addition, written opinions
are not published for all cases (Roehling, 1993). Published opinions are more likely
to be available for nonjury cases (Marvell, 1978) and cases involving policy deci-
sions (Marvell, 1978; D. Shallenberger, attorney, personal communication, July 5,
1996). To overcome potential sample bias, future research might adapt the fact pat-
tern methodology used in experimental studies to samples of actual judges to get a
fuller understanding of how a variety of factors jointly influence the judicial decision
making process (see, e.g., Kovera & McAuliff, 2000).
Judges' written opinions vary in their length and the issues on which they choose
to focus. Therefore, certain types of information are not consistently available across
opinions. Because of the limited information provided in written opinions, we were
forced to dichotomize many of our predictor variables. The use of continuous vari-
ables would have been preferable, as dichotomizing results in the loss of potentially
important information. In addition, it is possible that legal standard is confounded
with other variables not included in the analyses. For example, our Precedent variable
is partially confounded with the circuit in which the case was heard. This confound
might raise concerns that our results reflect differences among circuits in the ex-
tent to which judges are pro plaintiff (Juliano & Schwab, 2001), rather than judges'
differential use of standards. However, when we removed from our dataset cases
heard in two of the most plaintiff-friendly circuits (Juliano & Schwab, 2001), our
logistic regression revealed that the coefficient associated with Precedent became
more rather than less significant. In additional analyses (available from the authors
upon request), we created a dummy variable indicating whether cases were heard
in one of the three precedent-setting circuits (the Third, the Sixth, or the Ninth; 1)
or not (0). We then reran our analyses, including our control variables in the first
step and this dummy variable in the second step. Analyses revealed that this dummy
variable did not approach significance. These subsequent analyses suggest that the
differences in court decisions associated with the Precedent variable are not solely
a function of the circuit in which the case was heard. However, the relatively weak
relationship found between Precedent and Court decision may reflect the impact of
other relevant variables not included in the analyses.
The Reasonable Woman Standard 25

A number of researchers and scholars have questioned the use of a reason-

ableness standard altogether (Ehrenreich, 1990; Gutek et al., 1999). Critics worry
that a reasonable woman standard will trivialize sexual harassment by defining it
as a problem that is only perceived and experienced by women (Bernstein, 1997;
Childers, 1993; Johnson, 1993), reduce organizations' willingness to hire women be-
cause female employees increase organizations' vulnerability to legal action (Adler &
Peirce, 1993), and open the door to other types of gender preference systems (Gutek
& O'Connor, 1995) that are inconsistent with the notion of sex-blind employment de-
cisions (Childers, 1993). In addition, some authors have suggested that a reasonable
woman standard considers only the mean differences between men and women-
ignoring the fact that women are very different from one another (Abrams, 1995;
Gutek & O'Connor, 1995; Johnson, 1993) and puts the focus on the victim rather than
the perpetrator where it belongs (Abrams, 1995). Finally, others have suggested that
a truly objective test that applies broadly is unattainable (Ehrenreich, 1990). Future
research might explore the use of alternatives to the reasonableness standards that
have been proposed (e.g., respectful person standard; Abrams, 1998) in an effort to
understand their potential impact on court decisions.

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