Gender Is Important in Sexual Harassment Claims
May 1, 2000
Melissa Pigott, Ph.D. — Magnus Research Consultants, Inc., Pompano Beach,
Florida
Using a factual scenario involving an employee who was sexually harassed by a
supervisor while both individuals were on an out of town business assignment, I
researched the effects of litigant’s gender on the outcome of a simulated
civil trial. The results of this research are co-authored by Linda A. Foley and
published in an article entitled The Role of Gender in Sexual Harassment
Litigation in 23 Trial Lawyer 49-58 (2000). Key aspects of an actual civil trial
were contained in the research, including each jury deliberating until a
unanimous verdict was reached.
Everyone was presented with an identical set of case facts, with one
important exception: half of the juries believed the plaintiff was female and
the defendant was male, while the other half of the juries believed the
plaintiff was male and the defendant was female. (We also varied the race of the
litigants; for more information on the study as a whole, please contact this
author.) To our knowledge, ours is the first experimental study to involve a
direct comparison of male to female and female to male sexual harassment. As a
result, many of our findings were quite unexpected.
We found that the gender of the plaintiff and defendant had strong effects on
jurors’ liability and damages decisions. College students comprised half of
our juries; students blamed the plaintiff less and the defendant more when the
plaintiff was male and the defendant was female. The other half of our juries
were made up of jury-eligible citizens, who made no gender-based distinction in
blaming the plaintiff, but who nevertheless blamed the male defendant more than
the female defendant. College students awarded more damages to the female
plaintiff, while jury-eligible citizens awarded more damages to the male
plaintiff. An examination of comments made during jury deliberations revealed
that most comments centered on the plaintiff’s conduct, regardless of the
litigant’s gender. Comments about the defendant’s conduct, however, varied
considerably depending on whether the defendant was a man or a woman. For
example, when the plaintiff was female and the defendant was male, deliberations
comments about the defendant centered on males’ preoccupation with sex. When
the plaintiff was male and the defendant was female, however, comments focused
on the defendant’s unusual aggressiveness.
There were many other compelling findings in our study of jury behavior. The
implications of the results are far reaching for managers, human resources
professionals, CEOs and general counsel who are faced with an increasingly
diverse subgroup of employees who become litigants in sexual harassment cases.
Many of the results centered around the unusual/atypical gender conduct of both
parties when a man is harassed by a woman. In this scenario, the male plaintiff
is likely to be blamed less and compensated more than his female counterpart in
an identical situation. It appears to us that jurors were trying to justify
their decisions when the harassment did not fit the usual female victim-male
harasser pattern. In contrast, when the plaintiff was female and the defendant,
male, the pattern that is most familiar to jurors, no justification was required
for jurors’ decisions.
Why are these results important to corporations and their management? The
study’s results are important because a growing number of sexual harassment
cases do not fit the traditional pattern upon which corporations have developed
mechanisms to defend legitimate claims and to dismiss, out of hand, spurious
accusations. Traditional ways of litigating sexual harassment cases are likely
to be ineffective when female-to-male (not to mention male to male or female to
female) harassment is at issue. Ignoring or minimizing unusual aspects of a
sexual harassment lawsuit will not be in the corporation’s best interest;
instead, the CEO, manager, human resources executive, and general counsel must
obtain all available information that will provide an "early warning"
of the likely case outcome. Because sexual harassment cases appear to be an
ever-present byproduct of workplace interaction, corporations are well advised
to keep an open mind about all of the factors which make each case unique.
Melissa Pigott, Ph.D., is co-owner and Director of Research at Magnus
Research Consultants, Inc. She consults with attorneys nationwide on all types
of trial and jury research.
For more information please contact Melissa Pigott at 954-784-0110, web site:
www.magnusweb.com.
Related Practices