Sexual Harassment: Different Standards for Different Racial and Ethnic Groups

Abstract

To date, the courts have experienced considerable difficulty in determining what constitutes a sexually hostile work environment. Although the courts have not agreed on whether to use a reasonable-person or a reasonable-woman standard in deciding whether a sexually hostile work environment exists, our article raises a further complication: Should the courts also consider the ethnicity and race of the harassed person, because perceptions of sexual harassment also depend on these characteristics? Our article suggests that applying different standards based on the harassed person’s race/ethnicity is neither legally effective nor socially desirable. We argue that the most legally appropriate and socially desirable standard by which to judge sexual harassment cases is a modified reasonable-person standard that takes into account the relevant individual and group characteristics of the person allegedly harassed. To date, the courts have experienced considerable difficulty in determining what constitutes a sexually hostile work environment. The major issue the courts have faced in this regard is whether to use the “reasonable-person” or “reasonable-woman” standard when making this determination [1, 2]. In the case of Ellison vs. Brady, for example, the Ninth Circuit Court of Appeals said that “in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim” [3, at 626]. As the court continued, “a complete understanding of the victim’s view requires, among other things, an analysis of the