41 Pages Posted: 19 Mar 2013
Date Written: 2012
After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, however, continue to use the reasonable woman or reasonable victim standards.
Most of the scholarship concerning the proper standard of reasonableness assumes male perpetrators and female victims. There is no legal scholarship that deals with the question of a male victim of a female perpetrator. A recent Ninth Circuit female-on-male harassment case raises important issues concerning the reasonable woman standard.
This Article develops multidimensional masculinities, a new legal theory, to reconsider sexual harassment law as it relates to male victims. Through an examination of the recent Ninth Circuit case, it demonstrates that applying a reasonable man standard to male victims would establish a preferred standard of masculinity that may harm men, women, and society in general. Most likely, the Article proposes, the standard would mimic the concept of “hegemonic masculinity,” the most powerful ideal form of masculinity in society. This ideal form of masculinity would judge too harshly those men who may be most vulnerable to other-sex and same-sex harassment: men who do not live up to gender stereotypes.
This Article proposes a shift to a new universal standard for determining whether workplace behavior is sufficiently severe or pervasive to create a hostile working environment. This standard inquires whether the victim’s response is a reasonable one considering not only the various identity factors of the victim, but also the workplace, and the social and individual context in which the harassing behavior occurs.
Keywords: reasonable person standard, reasonable woman standard, Title VII, multidimensional masculinities theory, EEOC v. Prospect Airport Services Inc
JEL Classification: K31
Suggested Citation: Suggested Citation