Apr 10

A ‘reasonable woman’ standard for sexual harassment claims

Sexual harassment in the workplace remains an ongoing issue. The continuing durability of #MeToo and high-profile sexual harassment claims from women in media, entertainment and politics are a sign that employers still have significant work to do in acknowledging and addressing sexual harassment.

In the fourth national workplace sexual harassment survey by the Australian Human Rights Commission, one in two women and one in four men reported experiencing sexual harassment.

While legal definitions of sexual harassment vary somewhat, the common theme is unwelcome conduct of a sexual nature that a reasonable personwould find offensive, humiliating or intimidating. [1]

The reasonable person standard has generally been considered an objective standard, but as research into implicit bias and increased attention to intersectionality reveals that the supposedly objective standard of the reasonable person is not so objective after all.
 

Who is a reasonable person?

The definition of the reasonable person has been historically male – and male of a certain type: white, cis-gendered, economically privileged, able-bodied.

In the US, at one federal court has adopted a “reasonable woman test”, noting the traditional reasonable person standard tended to be male-biased and enshrine societal norms, thus systemically ignoring the experiences of women. The court stated that it was necessary to consider the different perspectives of men and women regarding sexual harassment to ensure that courts did not “sustain ingrained notions of reasonable behaviour fashioned by the offenders.”[2]

However, some commentators have voiced concern that the reasonable woman standard itself could be used to reinforce stereotypical notions of women as victims or result in a reasonable woman standard that preserved the perspective of privileged women, further disadvantaging the rest.  Others have asked whether an idea so tied to common practice and societal norms can adequately address the experiences of women (and others) who have not been regarded as the norm.[3] 

Do we need a new standard?

Questioning the reasonable person standard and recognising its historical limitations can inform a new sensibility regarding appropriate behaviour.

Many of the discussions arising from #MeToo have contributed to just this sort of dialogue. Women and men have been able to share unreported sexual harassment that was previously tolerated and tacitly endorsed and to openly discuss changing standards in a diverse workforce.

In the context of sexual harassment, the reasonable person standard can be used to reflect not just the average person, but a person who is aware of the barriers to workplace equality.

Perhaps rather than adopting a new standard, we can recognise an evolving reasonable person. We can broaden our definition of the reasonable person to include the experiences of women and other groups that have not historically exercised power and have faced systemic bias. 

Create an informed sensibility to promote change

How can you support an inclusive reasonable person standard in your workplace?

  • Create a culture in which differences are acknowledged and accepted.
  • Promote positive workplace interactions and call out inappropriate behaviour.
  • Sensitivity to social context and common sense are important in considering whether conduct is reasonable.

The continued confusion and dismay expressed by some commentators as to what now constitutes sexual harassment, and the surveys indicating that some men are now wary of mentoring women, show that cultural responses to sexual harassment are still evolving. But ‘people talking to people‘ is still the way norms and standards change. 

About Tanya Hunter 

Tanya Hunter, Worklogic Consultant

Tanya Hunter brings considerable litigation and policy experience to her role as a workplace investigator and consultant. She has worked with state and local government, not-for-profits and private firms in the USA and Australia. 

Tanya brings a balanced, impartial approach to the entire process from preliminary analysis of complaints to conducting investigations, creating productive policy guidance and solutions and implementing change projects.

Worklogic works with employers to resolve workplace complaints and create a positive culture at work. Please contact Tanya if your organisation needs assistance, call (03) 9981 6500 or come along to our training!
 

Footnotes

[1] The Sex Discrimination Act 1984 (Cth) defines sexual harassment as “any unwelcome sexual advance, request for sexual favours or conduct of a sexual nature in relation to the person harassed in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated“.
 
[2] Ellison v Brady, 924 F.2d 872 (1991). Much was written about the reasonable woman in the early 90s when sexual harassment enjoyed some time in the spotlight, particularly following the confirmation hearings for US Supreme Court Justice Clarence Thomas regarding Anita Hill’s claims of sexual harassment.

[3] Moran, Mayo, The Reasonable Person: A Conceptual Biography in Comparative Perspective (2010). 14 Lewis & Clark L. Rev. 1233 (2010), 1233-1283.