Sexual Harassment Litigation Research Articles

APA Board Discusses ‘Roadmap for the Future,’ M/UR Nomenclature

APA Board Discusses ‘Roadmap for the Future,’ M/UR Nomenclature

Rethinking Richardson: Sexual Harassment Damages in the #MeToo Era

The 2014 judgment in Richardson v Oracle Corporation Australia Pty Ltd (‘ Richardson’) had a seismic effect on workplace sexual harassment claims in Australia. Overnight, the ‘general range’ of damages awarded for non-economic loss in such cases increased from between $12 000 and $20 000 to $100 000 and above. The judgment has made Sex Discrimination Act 1984 (Cth) litigation considerably more attractive for plaintiffs and resulted in greater judicial recognition of the pain and suffering experienced by sexual harassment survivors. Richardson’s impact has also been felt beyond that immediate context, with the judgment cited in support of higher damages in discrimination cases and employment disputes. However, six years and over 40 judicial citations later, Richardson’s broader significance remains unclear—particularly following the emergence of the #MeToo movement. Drawing on a doctrinal analysis of subsequent case law and qualitative interviews with prominent Australian legal practitioners, this article evaluates Richardson’s legacy and considers how sexual harassment litigation may further evolve to reflect changing societal norms.

‘Gender Sensitivity’ in the Sexual Harassment Cases and the Principle of Free Consideration of Evidence

This paper analyzes the meaning of the Supreme Court ruling on sexual harassment sentenced on April 12, 2018, in relation to the Principle of free consideration of evidence under the Civil Procedure Law. The Supreme Court ruling declared, “Sexual harassment cases ought to be resolved with gender sensitivity in striving for gender equality and better understanding of gender discrimination issues (see Article 5(1) of the Framework Act on Gender Equality). In rendering judgment on the instant case, the Supreme Court emphasized that: (a) sexual harassment victims are constantly insecure and afraid that they may be exposed to ‘secondary victimization’ (also known as ‘victim-blaming behavior or practice’) upon having reported the incident and may be subjected to unfavorable treatment or suffer emotional distress; and, as such, (b) a victim remains silent and stays in contact with the offender (if the offender is a boss or holds a higher position), or raises the issue together with other victims after a considerable time has passed, or tends to become passive when giving testimony. As can be seen, readily denying the admissibility of a victim’s statement without sufficiently taking account of the extenuating circumstances of a sexual harassment victim cannot be deemed as establishing proof based on empirical and logical rules in line with the principle of justice and equity.” The Supreme Court ruling is a very meaningful one that can contribute to the realization of gender equality in civil and administrative litigations related to sexual harassment, because the responsibility for proof of sexual harassment in the case of sexual harassment litigation lies with the counterpart of the sexual harassment actor, and in fact the existence of sexual harassment is recognized by the admissibility of a sexual harassment victim’s statement. However, the Supreme Court ruling proclaimed such things as empirical rules without providing any evidence on the special circumstances of victims of sexual harassment. Based on previous research on the attitudes of victims of sexual harassment and secondary damage, the empirical rules declared by the Supreme Court is not wrong. The Supreme Court, however, should have opened a plea to hear the statements of expert references, to have the parties make a plea for them, and then declared in his judgment the empirical rules that was accepted in that plea.

Sexual Harassment Litigation: a Road to Re-victimization or Recovery?

Various aspects of the judicial process have been hypothesized as damaging to sexual harassment plaintiffs, though limited research has been conducted that actually examines this hypothesis. We examined data from a large sample of women who participated in a class action lawsuit alleging workplace sexual harassment and discrimination (n = 1218) and another sample of similarly situated women who opted out of litigation (n = 465, non-litigants). We then followed the litigants for 5 years. This study takes an initial look at some of the variables theorized to play a role in the psychological outcomes of both harassment and subsequent litigation. Both the severity of harassment and participation/persistence in the litigation process were related to psychological outcomes at each of three assessments across a 5-year period; the frequency and severity of harassment, as well as plaintiffs’ cognitive appraisals of their situation, appeared to have the strongest relationship to psychological harm. Results of multivariate analysis of covariance (MANCOVA) revealed that participation and persistence in litigation played a consistent role in psychological outcomes across time, over and above the impact of harassment itself. However, litigation did not appear to be the cause of psychological outcomes as posttraumatic stress disorder (PTSD) symptomatology, in particular, was the result of the original harassment experience.

Sexual Harassment: What Forensic Clinical Psychologists Need from Social Scientists

Forensic clinical psychologists who conduct evaluations and present expert testimony in sexual harassment cases must have some familiarity with the scientific literature about sexual harassment. However, these experts frequently discover that the social science research related to sexual harassment provides little in the way of tools or data that are directly applicable to the evaluation of plaintiffs in sexual harassment litigation. This article addresses that issue and offers suggestions to social science researchers that may improve the utility of sexual harassment research in the litigation of sexual harassment cases.

Managing Workplace Sexual Harassment: The Role of Manager Training

Sexual harassment remains a persistent problem for businesses. Indeed, employers spend millions annually in sexual harassment litigation and liability costs. Furthermore, current U.S. law effectively makes it management's responsibility to implement programs to prevent and correct harassment, or else face heightened liability. A common element of prevention programs is training, especially for employees in positions of authority. Several states have gone so far as to mandate sexual harassment training. However, little research exists to demonstrate the efficacy of such training programs. It is known that training sensitizes people in recognizing harassment. However, no research has indicated that training enables managers to accurately identify harassment and respond appropriately. This exploratory study addresses this issue by examining whether training quantity (i.e., cumulative training hours), training variety (i.e., the number of training methods employed), and training recency (i.e., the elapsed time since training) predict a manager's ability to (a) accurately identify sexual harassment and (b) recommend an appropriate response. Results suggest that, while training increases sensitivity, training is associated with decreased accuracy in identification of sexual harassment. No relationship was found among the predictor variables and manager accuracy in recommending an appropriate response. Implications concerning these results are offered along with directions for future research.

An Exploration of Policies Governing Faculty-to-Student Consensual Sexual Relationships on University Campuses: Current Strategies and Future Directions

Consensual sexual relationships between students and faculty have traditionally been viewed as private matters and have been ignored by university administrators except in cases that resulted in sexual harassment claims. Due to increasing sexual harassment litigation and the liabilities associated with such relationships, universities have developed policies to limit relationships between faculty and students and to acknowledge the power differential inherent in such relationships. These policies, however, differ between universities, causing confusion among the university community as to what is considered acceptable and ethical behavior. Using a sample of 55 universities, this analysis attempted to determine (a) the level of acceptability of such relationships, (b) the language or absence thereof addressing power differentials, (c) liability issues associated with these relationships, (d) reporting requirements, and (e) whether clearly outlined sanctions exist when/if such relationships occur. Future directions for research and policy are also discussed.

Sexual Harassment, PTSD, and Criterion A: If It Walks Like a Duck …

Sexual harassment and posttraumatic stress disorder (PTSD) are two topics that generate heated debate in the social science literature. When the two are combined in the civil litigation context, the intensity of the debate is heightened by the adversarial context of the courts. The current paper examines research on both sexual harassment and PTSD separately, before addressing the issues that arise for psychologists and psychiatrists who serve as expert witnesses in sexual harassment litigation. Proposed resolutions of controversies are offered that attempt to expand the knowledge base for expert witnesses on the topic of sexual harassment as well as work within the current Diagnostic and Statistical Manual (DSM-IV-TR; American Psychiatric Association 2000) framework of PTSD.

PTSD Symptoms and Sexual Harassment: The Role of Attributions and Perceived Control

Researchers have compiled significant evidence demonstrating that sexual harassment leads to psychological harm, including the full symptom picture of PTSD, but few have examined the psychological processes involved. Research on attributions among trauma victims would suggest that causal attributions and perceptions of control may be important predictors of outcomes. The authors discuss a study involving a path model that used data from 189 women involved in sexual harassment litigation. Results indicate that both self-blame and harasser blame were positively related to PTSD symptoms. Control over recovery and the perception that future harassment is unlikely were both related to fewer PTSD symptoms. Unexpectedly, perceived control over future harassment is related to higher levels of PTSD symptoms. Implications for research and practice are discussed.

Insiders and Outsiders: Does Forbidding Sexual Harassment Exacerbate Gender Inequality?

Sexual harassment is perceived to be a major impediment to female labor force participation. Using novel data on all workplace sexual harassment precedent in US Circuit Courts from 1982-2002, we exploit the random assignment of US appellate judges and the fact that a judge’s gender and party of appointment predict decisions in sexual harassment cases to demonstrate the causal impact of pro-plaintiff sexual harassment precedent on the adoption of sexual harassment human resources policies and reduction in gender inequality. Consistent with an insider-outsider model of involuntary unemployment, forbidding sexual harassment encouraged entry of outsiders and reduced gender inequality along the dimensions of quantity and price, particularly in the construction industry, which was heavily affected by sexual harassment litigation, but these ameliorative effects are reduced for insider women. Pro-plaintiff decisions spurred the adoption of sexual harassment human resources policies by 4.8 percentage points and increased female employment shares by 0.4 percentage points.

Sexual Harassment Judgments by British Employment Tribunals 1995–2005: Implications for Claimants and their Advocates

AbstractThis article reports on the first large‐scale study of sexual harassment litigation in Britain based on analysis of official case records. Its aim is to identify key factors distinguishing successful and unsuccessful claims. Five themes drive the analysis: credibility and its construction, the various types of sexual harassment, power resources, the time period in which the case was heard, and the gender composition of the tribunal. Hypotheses are tested on a random sample of 183 cases heard between 1995 and 2005. Some important disconnections between workplace realities and the operation of the tribunal system were revealed. Credibility of claimants turns importantly on how they initially reacted to the harassment of which they later complained and on the number of complementary claims they bring. Workers in elementary occupations experience a lower success rate before tribunals. Power resources in the form of legal representation significantly affect case outcomes. Implications for claimants and their advocates are discussed.

In Harm's Way: Factors Related to Psychological Distress Following Sexual Harassment

The negative consequences for victims of sexual harassment are well documented. However, one area unexamined is the process that leads to harm. Researchers have proposed three influences (i.e., objective or stimulus factors, individual factors, and contextual factors) on the psychological, health-related, and organizational outcomes of sexual harassment. This article examines the relative contribution of these influences on psychological distress following sexual harassment. Two studies were conducted. First, we examined approximately 1,200 women in a financial industry class-action lawsuit. A series of hierarchical regressions and subsequent dominance analysis revealed that the severity of the experiences and attributions made about them were the most important influences on symptoms of psychological distress. Study 2 examined 85 female plaintiffs in sexual harassment litigation. Dominance analysis again showed that the magnitude of their experiences had the strongest relationship with distress. Implications of these findings are discussed.

Insiders and Outsiders: Does Forbidding Sexual Harassment Exacerbate Gender Inequality?

Sexual harassment is perceived to be a major impediment to female labor force participation. Using novel data on all workplace sexual harassment precedent in US Circuit Courts from 1982-2002, we exploit the random assignment of US appellate judges and the fact that a judge’s gender and party of appointment predict decisions in sexual harassment cases to demonstrate the causal impact of pro-plaintiff sexual harassment precedent on the adoption of sexual harassment human resources policies and reduction in gender inequality. Consistent with an insider-outsider model of involuntary unemployment, forbidding sexual harassment encouraged entry of outsiders and reduced gender inequality along the dimensions of quantity and price, particularly in the construction industry, which was heavily affected by sexual harassment litigation, but these ameliorative effects are reduced for insider women. Pro-plaintiff decisions spurred the adoption of sexual harassment human resources policies by 4.8 percentage points and increased female employment shares by 0.4 percentage points.

Sexual harassment and the law: the British experience

PurposeTo explore key legal issues surrounding sexual harassment claims made to employment tribunals and the courts.Design/methodology/approachThis entails qualitative legal analysis of case decisions. This will involve an exposition of the reasoning behind legal decisions and a critical examination of the courts' or tribunals' interpretation of the law.FindingsThe research provides information about features and trends in sexual harassment litigation in Britain.Research limitations/implicationsThis paper outlines a set of preliminary results from an analysis of some sexual harassment cases heard in Britain.Practical implicationsHighlights key implications of legal decisions for human resource policy and practice in organizations. It will also identify deficiencies in management practice that lead to instances of sexual harassment taking place.Originality/valueScholars and policymakers in organizations should be interested in an integrated analysis of legal and organizational issues with respect to sexual harassment. The wider potential of the research is supported by the interest of the Equal Opportunities Commission and the willingness of the Commission to be named as an end user of the study.

Sexual Harassment in the Workplace: A United States Perspective

Sexual harassment litigation has increased significantly within the United States. It is a cause of action that was created by the judiciary to enable an employee to work in an atmosphere free from a sexually hostile environment. Some parameters of U.S. sexual harassment law are still unclear, but the law now applies to men and women, and the burden of proof has gradually been eased. Under judge-made law, an employer will always be liable when harassment culminates in a tangible employment detriment. The employer is also automatically liable when a supervisor creates a hostile environment, unless the employer can prove that it has taken reasonable steps to prevent or correct harassment and that the employee unreasonably failed to use the employer's anti-harassment procedures. Employers are also liable for harassment perpetrated by supervisors, co-workers and non-employees if the employer is negligent in failing to prevent or correct harassment. Employers are thus well advised to formulate and enforce an anti-harassment workplace policy that allows a complainant to have a thorough, impartial and prompt investigation of any allegation of harassment. Complainants can elect to use federal-law and state-law remedies for sexual harassment/discrimination. The state law, unlike the federal, may allow unlimited tort-like damages. A complainant may also allege common law causes of action such as infliction of emotional distress.

A Classical Perspective on the Modern Workplace: The Aristotelian Conflict in Sexual Harassment Litigation

The current structure of sexual harassment litigation in Canada poses unique issues for Aristotle’s distinction between corrective and distributive justice. Due to a series of decisions in the 1980s and 1990s, sexual harassment claims in Canada must be brought exclusively under human rights legislation. This system views sexual harassment as a form of sex discrimination, and roughly subscribes to the view that sexual harassment is an incident of distributive injustice. However, the form of the litigation tends to undermine its distributive justifications. The litigation generally corresponds to the traditional adversarial model, with the complainant seeking damages from the harasser. Consequently, some commentators have argued that sexual harassment should be treated as a private law cause of action, rather than an issue for the human rights system. This article examines the rationale for classifying sexual harassment as an object of corrective or distributive justice, and particularly whether harassment should be viewed as an individual or a group harm. It also addresses the emerging claims for heterosexual male-on-male or bisexual harassment, which create problems for the view that sexual harassment is a form of discrimination “because of sex.” Finally, the article explains how the distributive and corrective theories of justice are manifested in the extent of employer liability and the available remedies.

A reasonable woman standard in sexual harassment litigation

Sexual harassment litigation may be thwarted by judges failing to address the acts in question from the perspective of the victim, thus legitimising behaviour acceptable to men but unacceptable to women. This paper shows how this problem may be overcome by adopting a ‘reasonable woman’ standard to decide if: (i) objectively, the acts in question constitute harassment; and (ii) subjectively, whether the victim suffered injury. Using US case law the paper shows how the reasonable woman standard, which has been accepted in some courts, can allow women's perspectives to be heard. The paper suggests that a reasonable woman standard should be adopted in UK tort law, specifically in litigation under the Sex Discrimination Act, but also for litigation under trespass torts and under the Protection from Harassment Act. Doctrinally, the proposed standard fits within the fabric of tort la; and does not challenge the principle of corrective justice. From a feminist perspective, the reasonable woman standard can successfully redirect tort law to address gender-specific harms.

Sexual harassment and the communication conundrum

The rise of both sexual harassment complaints and litigation has made many companies react with strict no tolerance policies causing widespread concern among employees that anything they say might be misconstrued and lead to their termination. This fear is largely unjustified. Most people understand what is being said and do not misinterpret offhand and innocent remarks as sexually harassing. This paper examines some of the areas where the sexes are in agreement as to what does and does not constitute sexual harassment. In doing so, certain forms of behavior are discerned that pose a particular problem. By pinpointing specific areas where communication is especially ambiguous, educators and trainers can focus their resources and dramatically reduce sexual harassment in the workplace.

Junk logic: The abuse defense in sexual harassment litigation.

Junk logic: The abuse defense in sexual harassment litigation.

Junk logic: The abuse defense in sexual harassment litigation.

Junk logic: The abuse defense in sexual harassment litigation.