Vol. 15 No.3 (March 2005), pp.208-210
GENDER MYTHS v. WORKING REALITIES: USING SOCIAL SCIENCE TO REFORMULATE SEXUAL HARASSMENT LAW, by Theresa M. Beiner. New York: New York University Press, 2005. 288pp. Cloth $45.00. ISBN: 0-8147-9917-5.
Reviewed by Paul Weizer, Department of Social Sciences, Fitchburg State College. Email: firstname.lastname@example.org .
This book, by Theresa M. Beiner, Professor of Law at the University of Arkansas at Little Rock, is a unique and fascinating look at how sexual harassment law is construed (or perhaps misconstrued) in the American Legal system. Beiner starts from the perspective that courts all too often confront vague legal standards with little guidance in attempting to define sexual harassment. As a result, courts often impose their own views and/or stereotypes regarding the role and behavior of women in the workplace. The goal of the author is to fill this void by demonstrating that social science data show that there is considerable agreement as to what constitutes sexual harassment. Accordingly, if courts were to rely on such data, they could become more consistent and apply the law more equitably. GENDER MYTHS v. WORKING REALITIES is an innovative and fresh approach to a complex problem. The concept for the book is both fascinating and intriguing, and in some sections Beiner’s approach is an unqualified success. However, in the end, the limits of research, as well as the reality of inconsistent legal definitions of the term, ultimately outweigh the usefulness of social science data in many areas of sexual harassment law.
The “Introduction” traces the beginnings of sexual harassment law. It is interesting to note that the treatment of sexual harassment law is unique—the law led “the way to reform before social scientists have defined the particular human behavior that warrants legal attention” (p.3). As a result of the courts’ getting ahead of scholars, many defaulted to assumptions or stereotyped expectations of typical behavior among women in the workplace. Social science data, Beiner concludes, have proven these assumptions wrong in many instances. While recognizing the challenges associated with adapting social science data to this end (including methodological hurdles, time “sensitivity” of some data, the populations studied, and research terminology and definitions), the author contends that social science could be very useful to a judge or jury in some instances. When, for example, a judge or jury must decide whether a reasonable person would find a specific behavior to be harassing, social science research showing consistent results would be quite useful.
The book is then divided into seven chapters, each looking at specific areas of sexual harassment law and how social science data could be used in this area. Chapter one deals with determining when something is “sufficiently severe or pervasive” enough to constitute sexual harassment. One of the great difficulties regarding sexual harassment [*209] law is finding a consistent understanding of what is actionable. Using survey data and focus group research, Beiner is able to show that social science does provide a great deal of information about what people perceive as sexual harassment, and it is quite consistent. Moreover, Beiner observes that, because the Supreme Court has relied upon the “reasonable person” to apply the standard, social science studies can be used to demonstrate what reasonable people do, in fact, perceive as harassing.
Chapter Two looks at the reasonable woman standard. There has been much debate in the courts for years regarding whether a standard that looks at sexual harassment from the perspective of a reasonable woman is more appropriate than a reasonable person criterion. After reviewing the reasoning that led to this dispute in the various lower courts, the author turns to social science to determine how the research compares with the views expressed in the courts. Interestingly enough, although probably not true twenty years ago, there does not seem to be much difference in the perceptions of men and women today, at least in less ambiguous cases. The research also clearly shows that there is, at a minimum, a growing consensus between men and women about what constitutes sexual harassment. Beiner concludes this section by proposing that “perhaps the real solution to the reasonableness debate is to not include reasonableness in the standard . . . the courts could use perception data as the basis for this determination instead” (p.60).
Chapter Three focuses on defining “unwelcome” in the sexual harassment context. Here, social science research is much less useful than in the prior two chapters, and most studies simply confirm that frequent responses to harassment are to ignore it or react passively. As a result, the data add little that is useful to judges or juries. Beiner does provide a detailed analysis of the issue and suggests several possible approaches, but in terms of using social science data to reformulate sexual harassment law, this chapter falls short. A similar problem exists in Chapter Four examining the meaning of “because of sex” in the interpretation of sexual harassment. While this chapter presents an excellent review of the law regarding such topics as same sex harassment and equal opportunity harassers, social science applicability is quite limited. Much of the research detailed in this chapter consists of law journal opinion pieces, and while interesting and thought provoking, they offer limited guidance to judges and juries looking for clarity. Further, the “practical solution” offered by Beiner is to have courts focus on the circumstances of a given case and apply psychological research on stereotypes. The factors she suggests – e.g., whether the workplace is gender homogeneous, the target is separated from co-workers of the same gender, and whether the occupation is traditionally gendered – are not, of themselves, indicative of sexual harassment. All could be present without proving, or even leading to a presumption of, sex-based discrimination. The final factors (whether the environment is sexualized, and management’s attitude toward sexual harassment) are quite subjective. A problem throughout is that Beiner considers a shifting array of social science from chapter to chapter and subject to subject. [*210]
Chapter Five examines the employer liability standard used by the courts in sexual harassment disputes, and Chapter Six addresses compensation for victims and deterrence of future actions. In each, after reviewing existing precedent and lower court actions, Beiner makes a compelling case for the need for clarity. Again, the types of research considered and their usefulness to the analysis are mixed.
The final chapter, “The New Sexual Harassment Claim,” considers what a claim would look like if the courts relied upon the social science research recommended in the preceding chapters. The author does make a persuasive argument that the law could be clarified considerably and applied more consistently with the proposed approach. Lacking, however, is a design to begin the process of introducing the courts to appropriate and reliable social science. There is also no discussion as to why courts might be receptive to this approach; nor do we find any examples of where such an approach has been tried.
In sum, this book assesses the challenges of sexual harassment from an intriguing perspective. Although I have some reservations regarding the breadth of material categorized as social science research, the book provides fodder for many fruitful discussions, and it could be used in a range of undergraduate or graduate seminars dealing with research methods, civil rights, or equality issues. One does not need to agree with all of the conclusions in order to find utility in the approaches of the different social sciences.
© Copyright 2005 by the author, Paul Weizer.