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Thou shall not . . . commit a social science,” the poet W.H. Auden once advised, and many lawyers and judges seem to share that view. Particularly in fields that are not technically complex or removed from common experience, the legal system often ambles along, oblivious to what researchers show about its misguided assumptions and prescriptions. Nowhere is this more apparent than in sexual harassment cases, as a new book by law professor Theresa Beiner convincingly establishes. Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law offers a comprehensive account of the last quarter century’s research on workplace harassment. Beiner’s objective is both to expose how current legal doctrine fails to capture employees’ experience, and to suggest plausible reform strategies. In the process, she challenges what many Americans “know,” or only think they know, about a problem that remains all too persistent. As Beiner notes, between 40% and 80% of women are estimated to have experienced sexual harassment in the workplace, and the costs, both to them and their employers, are substantial. Designing a more effective legal response should be a social priority, and Beiner’s book points us in promising directions. One cluster of problems involves the definition of sexual harassment. To establish legal liability, employees must show that they were subject to unwelcome conduct based on sex that was sufficiently severe or pervasive to alter a term or condition of employment. The first difficulty is that courts applying this standard have often relied on their own skewed assessments of what is severe or pervasive; rather than let a jury decide, they grant summary judgments for defendants or overturn verdicts for plaintiffs. In many of these cases, judicial assessments differ from the public perceptions documented by social science research. This should come as no surprise, Beiner notes, because a wide range of studies indicate that views of harassment are shaped by gender, race and ideology. A federal judiciary that is predominantly white, male and politically conservative may not always appreciate how most workers perceive sexually offensive conduct. The solution, Beiner argues, is not the one some courts and commentators have advocated: asking how a reasonable woman, rather than a reasonable person, would interpret such conduct. Recent research indicates that a person’s sex has relatively little effect on his or her assessment of whether behavior is harassing. So too, in mock jury studies, altering the standard has made little difference in outcomes. Accordingly, Beiner argues, shifting to a “reasonable woman” test might simply mislead advocates of gender equality into thinking that they have remedied the problems with current doctrine. Social science research A better response would be for courts to consider, and allow juries to consider, social science research about what most people consider severe or pervasive harassment as a baseline for liability. Beiner also suggests that the law should drop the requirement that plaintiffs prove that conduct is unwelcome, except in the narrow category of cases for which that requirement was intended: failed consensual relationships. All too often, as Gender Myths makes clear, the welcomeness inquiry enables defense counsel to investigate or introduce evidence of the plaintiffs’ sexual behavior in order to humiliate them and pressure them into dropping valid claims or accepting inadequate settlements. If offensive conduct is severe and pervasive enough to alter the terms of employment, it should not be of consequence whether a particular victim occasionally used profanity or had an extramarital sexual relationship. To the extent that the welcomeness requirement aims to put a potential harasser on notice of what behavior is offensive, this function is already served by another feature of current doctrine; it makes employers liable only if they knew, or reasonably should have known, of harassment and failed to take appropriate preventive and corrective measures. However, this shield from liability is also in need of modification, for reasons that the book’s research summary makes obvious. All too often, courts have interpreted this defense to bar claims when employees did not promptly report offensive conduct, or when employers had a published policy or pro forma training program on harassment issues. One difficulty is that most women’s response to abusive behavior is to ignore rather than report it. Only when the conduct persists do many employees come forward, and their claims are often barred because they did not complain when the harassment began. A second difficulty is that we have no direct evidence of the effectiveness of training programs or formal policies in preventing harassment. The research we do have suggests that abusive conduct is less common when employees perceive that their supervisors take it seriously. Thus, Beiner argues, courts should focus not simply on whether policies or training programs are in place, but on how they are interpreted, and whether they are consistent with employers’ other messages about harassment. Taken together, Gender Myth‘s reform proposals would take us a considerable distance toward promoting a more equitable workplace. For centuries, employees have been harassed, but the law offered neither a label nor a remedy. It now provides both, but the challenge remaining is to make them effective. Deborah L. Rhode, an NLJ columnist, is the Ernest W. McFarland Professor of Law at Stanford Law School.

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