Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law.

Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law

Theresa M. Beiner New York University Press www.nyupress.org 288 pp., $45

Civil rights litigators often face judges who seem hostile to their client's interests. Responding to overcrowded dockets and tort "reform" efforts, many judges are too quick to dismiss civil rights cases by summary judgment and issue other orders that limit plaintiffs' access to trial.

In sexual harassment cases, these problems are compounded by judges who maintain stereotypical views of what harassment is and how a person should act when confronted by it.

Theresa Beiner, a law professor at the University of Arkansas at Little Rock, tries to help advocates deal with these problems through creative use of social science studies and testimony by experts in various fields. In Gender Myths v. Working Realities, she shows what social science can add to the development of sexual harassment law. Although the book is heavy on social science analysis, it should help litigators who handle sexual harassment cases to think "outside the box" and educate judges and jurors.

Her thesis is that sexual harassment law has not caught up with science concerning what is known about harassing behavior in the workplace and that social science can assist in the law's development. Beiner notes that there may be a surface consistency to the various legal standards that apply to sexual harassment claims. But she argues that judges who, consciously or subconsciously, apply their own view of what is or is not harassment during pretrial motions for summary judgment are denying harassment plaintiffs their day in court.

Her examples of horrendous cases that have been tossed out on summary judgment show that there have been many miscarriages of justice over the years. Beiner aims to give lawyers a broad understanding of social science research to equip them with arguments they can use to reverse this trend.

"Judges are taking cases away from juries when issues of fact exist," Beiner writes, explaining that the inadequacy of current legal standards regarding what should survive a summary judgment motion means few cases ever make it to a jury. "If [social science] surveys indicate that a majority of people surveyed believe a particular behavior [is] harassing, let the jury decide, given the context, whether it constitutes harassment in the particular case," she argues. Beiner believes the problem is that the present approach creates bad precedents, confuses employers as to what illegal harassment is, and stunts the proper development of harassment law.

Beiner discusses the basic concepts in sexual harassment law--"severe or pervasive" harassment, the "reasonable-woman standard," "unwelcomeness" of conduct, harassment "because of sex," imputation of liability to employers, damages, and deterrence--and how social scientists assess these concepts. In each chapter, she first gives an overview of the topic. Then she examines U.S. Supreme Court precedent and how the lower courts, where most cases are resolved, have handled--or mishandled-sexual harassment cases related to that topic. She critiques the lower courts, showing that they have not only created bad precedent but also demonstrated bias against targets of harassment and improperly taken cases of disputed fact away from the jury. Throughout, Beiner provides extensive notations, citations, and resources for her points.

For each topic, she examines the utility of using social science research to educate the court about the realities of harassment in the workplace--for example, whether it would be helpful to inform a court about the research through a "Brandeis brief," or through the use of expert witness testimony of reputed social scientists. Where research has not been particularly well done, she critiques it and gives legitimate reasons for its deficiency, noting that the study of sexual harassment is a relatively new science and is still developing.

Beiner strives to educate litigators about the opportunities that social science research presents for a more thorough development of sexual harassment law. The book is a good general overview of the topic and should help lawyers either entering the field or seeking new ways to bolster their cases.

Fortunately, Beiner is not only a law professor; she also has practiced law and is clearly well acquainted with the difficulties of getting these cases before a jury. Her book seeks to help plaintiffs survive summary judgment so they can prove their cases in court.

VICTORIA L. HERRING practices employment law in Des Moines.