Is it Reasonable? by Erik Pistol
Is it Reasonable? by Erik PistolReproduced with permission of the author.
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We've all heard of it, but are the books being cooked here? I keep hearing reports of bias in this law, of unfair decisions being handed down, of witnesses being ignored and facts swept under the carpet.
The courts frequently refer to the so-called reasonable woman standard when forming judgments on harassment cases. Some courts have, as a result of complaints, changed to a reasonable person standard. But what is this reasonable woman standard? How did it arrive? Who created it? And more to the point, what confidence can we have in a standard that was created solely to satisfy activist feminist wishes while excluding men's viewpoints altogether?
A recent study reported in the Journal of Applied Psychology calls into question the “reasonable woman” standard still used by some courts to decide harassment cases, especially in cases involving the less obvious forms of harassment.
The study performed a meta-analysis involving 33,164 participants in 62 studies and reported significant gender differences in the perception of what constitutes harassment. While there was significant agreement on the more severe forms of harassment such as groping, there were large differences at the minor end of the scale, for example one-off comments that refer to stereotypes.
This is a good study clearly describing differences in gender perception. But, it completely ignores two serious problems with the harassment legislation. First is the ease which vindictive individuals can manipulate the system to make false accusations to accomplish revenge. Second is the existence of serial frivolous accusers. Both male and female serial frivolous accusers exist in large numbers.
One example of a serial accuser is the woman who accused a New Jersey attorney of groping her. The attorney later discovered that she was a frequent filer of frivolous lawsuits, including one against a restaurant claiming damages because she did not like the way a server handled a soup ladle. The attorney, Michael Land, won $225,000 on his legal counterclaim for malicious prosecution. It took him four years and also cost him his lawyer business as customers stayed away in droves following early news reports.
In the litigation minefield of sexual harassment the courts have made great play of the so-called reasonable woman or reasonable victim standard, but this study calls this standard into question. This study identifies several differences in perception between the sexes on what is perceived as harassment.
Personally I would go further and question whether the standard exists at all — or is it merely legal hype and spin-doctoring to persuade the public that the courts are addressing a real problem.
A judge's summary at the end of a lawsuit has a marked effect on the decision returned by a jury. Mention the word victim a few times and this increases the likelihood of a conviction being obtained. And the harassment legislation and the associated publicity refer to victims with monotonous regularity. Rarely, it seems, do the judiciary consider that they may be used as poodles to enable a vindictive women to obtain revenge with minimal effort on her part.
While many frivolous accusers are reluctant to take their claims through the rigors of a court hearing, the nature of employer harassment hearings — mostly conducted in secret — are a magnet for frivolous accusations. Frivolous accusers are particularly happy that their identities must remain secret.
The law has many surprises for the unwary. One big surprise is that the courts (while holding a gun to the head of an employer in the form of multimillion dollar punitive damages) are giving the employer virtual carte blanche when it comes to getting the wrong result and sacking innocent men.
Even where men have returned to the courtroom to sue the employers for unfair dismissal and defamation of character, the courts have taken the attitude that “The employer can be wrong but even then you don't necessarily have recourse.” Let me say that again. The courts have ruled in many hearings that the employer is not liable for dismissing an innocent man — except under very special circumstances.
In Rundins Hollins Hall vs. Cotran The California Supreme Court ruled in a landmark case that an employer can only be sued for wrongful termination arising from what is later found to be false charges of misconduct or sexual harassment under special circumstances.
Specifically even if a man proved innocence after the event this was not relevant. The California court stated that all the employer needed to show was belief.
In other words, an innocent man has no rights within the law, unless he can prove malice by the employer. But this would require statements from a co-worker against the employer, and few employees are willing to assist litigation against their employer. This places a huge burden on an innocent man. Few witnesses wish to place their jobs on the line.
The courts have neglected to consider the effect that huge punitive damages have. These enormous punitive damages create a huge motive to impose disciplinary action while confident that there exists little risk of a counter lawsuit from a falsely accused man. Because even when the ex-employee proves innocence, the courts do not nail the employer. And the man is still without a job.
Almost every article and certainly every harassment policy that I have seen carries an assumption of guilt.
We all find it easy to believe someone else got the wrong idea, or could be rude. Indeed men seem to have the attitude that someone else could easily be guilty. This assumption is particularly strong when the accusation is kept secret. One is tempted to conclude that the reason for keeping the actual details of the accusation secret is to avoid the accuser being ridiculed! So much for the reasonable woman standard when the accusation is so ludicrous that the employer keeps it a secret.
In summary, the legislation creates a perfect environment for serial complainers of both sexes to implement revenge schemes by utilizing the harassment legislation both within the courts and especially within the workplace where the concept of due process has largely been thrown out of the window.
Erik Pistol is the webmaster of the Civil Rights Organization — A web site describing the excesses of the zero-tolerance approach to alleged sexual harassment in the workplace.
“A Meta-Analytic Review of Gender Differences in Perceptions of Sexual Harassment,” Maria Rotundo, University of Minnesota, Twin Cities Campus, Dung-Hanh Nguyen, California State University, Long Beach, and Paul R. Sackett, University of Minnesota, Twin Cities Campus; Journal of Applied Psychology, Vol. 86, No. 5
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