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Theresa M. Beiner, Gender Myths v. Working Realities. Using Social Science to Reformulate Sexual Harassment Law.

Theresa M. Beiner, Gender Myths v. Working Realities. Using Social Science to Reformulate Sexual Harassment Law (New York: New York University Press 2005)

BEINER'S BOOK retells an old sad tale: the actions of a small privileged elite frustrate the intentions of legislation designed by the larger community to address a social problem, legislation that relies on the legal system to provide redress to victims and to encourage social reorganization to eliminate the social problem.

In this case, the social problem is the sexual harassment of women in the workplace; the legislation is Title VII of the US Civil Rights Act that defines workplace sexual harassment as an illegal form of discrimination for which victims can seek damages in the courts. The small elite that frustrates this enterprise is, no surprise, the male (mostly) judiciary of the lower and higher courts of the USA, and corporations and their lawyers.

Beiner's goal is to reform US jurisprudence on Title VII as a means of reforming the US workplace from one that tolerates sexual harassment to one that discourages it. A reformed jurisprudence should provide fair and equitable decisions in workplace sexual harassment cases. The unfair and inequitable decisions produced now are seen by Beiner to be the product of the disjunction between the views of US courts and the social reality of workplace sexual harassment. Out of touch with workplace social reality, the court's views are structured out of presumption and stereotypes which lead to a focus on the behaviour of the female victims of workplace sexual harassment instead of the behaviour of the harasser. The outcome is that victims win too few cases, and harassers and their employers win too many. Even those cases lost by harassers and their employers result in small damages awards and this allows workplace sexual harassment to flourish in the USA.

Beiner believes that the corrective for presumptions and stereotypes held by the US court system is social science research that provides a factual basis for addressing questions from how victims respond to sexual harassment, through how effective are workplace sexual harassment policies and practices, to what are usual outcomes for women who do report sexual harassment and take their complaints to court.

Can social science research correct all of these presumptions and stereotypes? Does the research exist? If so, is there enough of it and is it relevant? Is the quality of the research adequate to the task? Are samples appropriate, large enough to be convincing and accurately measured? The answers, according to Beiner, are yes to all of the above.

This is not to say that she is unaware of difficulties here. She points to the problem of social science relying on "correlational studies" that do not "prove anything" but does not discuss the practical impossibility of experimental studies (which supposedly "prove things") of these phenomena. Nevertheless, Beiner sees that a lot of correlational studies can add up to something useful. Another problem is studies that rely upon college student populations who differ in substantial ways from working populations. Beiner's solution: use only studies based on samples of working people except where no alternatives exist and alert the reader where she has to use results from studies based entirely on student samples. She comments on problems with terminology, diversity of disciplines, too much variety in social science theories, and the short amount of time social science has been researching sexual harassment. Forewarning the reader, Beiner proceeds to use the research to show the mistaken conceptions and stereotypes that dominate the thinking and the actions of the US courts with regard to sexual harassment.

In Chapter 1, Beiner uses social science research to show that "the perceptions of judges on what constitutes harassment to the reasonable person do not always square with what reasonable people perceive as harassment." (16) The result is judges refusing to hear cases or permit them to go to trial on the grounds that the incidents complained of are not sufficiently "severe or pervasive" to constitute actionable sexual harassment. Beiner suggests that social science surveys of community opinions on what constitutes sexual harassment would set a more appropriate standard and allow more cases to go to trial. On the other hand, she also suggests that refocusing courts' attentions toward whether the harasser's actions affect the victim's conditions of employment would serve as a better criterion for "actionable" sexual harassment.

In her second chapter, Beiner suggests that the same refocus would put a good end to the "reasonable woman" debate currently used as part of the standard for determining if a harasser's activities constitute actionable sexual harassment.

Beiner's third chapter takes up the issue of how the "unwelcomeness" of sexual harassment has led to an inappropriate focus on the victim's response to harassment, and to her having to "prove" the harasser's attention was unwelcome, much as rape victims have to. Social science research results are used to show how the great majority of victims respond to sexual harassment by ignoring/avoiding it as long as possible. Harasser defendants can easily argue that they were misled by this response into thinking their actions were welcomed by the victim. Even after the failure of the ignoring/avoiding strategy, most victims do not report sexual harassment because of the risks associated with reporting. Beiner's solution is to put the burden of proof onto the harasser who would have to explain why he thought the behavior complained about was welcomed by the victim/plaintiff.

Is harassment of an employee "because of sex" or not? If it's not, then a sexual harassment suit cannot be brought under Title VII of the US Civil Rights Act. How do fact finders (judges and juries) make decisions not based on stereotypes? Beiner looks first at some social science research that suggests stereotypes play a smaller role in simple decisions than in complex, and when the criteria for decision making are unambiguous. She then suggests that "fact finders" assess five simple factors which social science has shown consistently show up when sexual harassment occurs: "(1) whether the workplace is gender homogeneous; (2) whether the target is isolated from others of the same gender; (3) whether the occupation is traditionally gendered male or female; (4) whether the environment is sexualized, ...; (5) what is management's (including the immediate supervisor's) attitude toward harassment." (141) This discussion takes up Chapter 4.

Chapter 5 deals with what Beiner sees as the most troublesome practice of the courts in sexual harassment cases. She looks at US Supreme Court decisions which provide a defence for employers, and require the sexual harassment victim to report the sexual harassment as "early as possible." The first permits employers to avoid liability for their employee's sexual harassment by pointing to their policy and training without having to show evidence that these are effective in preventing sexual harassment. Social science research shows that most policies and training programs are, in fact, ineffective. The second requires victims to act in ways that social science research shows most do not and will not, and hence impairs the likelihood that their suit will succeed. Beiner's solution here is to require employers to show that their practices actually work to diminish sexual harassment, have fact finders accept that harassed employees usually take a lot of time to report sexual harassment, and encourage courts to use compensatory and punitive damages assessments to discipline the most offending employers.

In Chapter 6, Beiner examines how to compensate victims and how to deter defendants. Her solution for both goals is to abandon the upper limits (caps) placed on sexual harassment damage awards in the us federal legislation and to use compensation and punitive damage awards "creatively." She uses social science research on the damage award behaviour of juries to show that without the caps, juries will not go crazy with large awards that ruin businesses found liable for workplace sexual harassment. In fact, they are likely to come up with awards that adequately compensate victims as well as encourage employers to take sexual harassment seriously.

In the final chapter, Beiner summarizes her approach to making Title VII of the US Civil Rights Act work to achieve its stated purposes: eliminate discrimination in the workplace and compensate victims. I found her arguments theoretically convincing, by and large, but as she admits, it is difficult to assess how effective all the changes would be without seeing them in action. And if they were implemented, it would not be surprising to see Beiner's plan dismantled bit by bit by the same forces that undermined and defeated the stated purposes of Title VII of the US Civil Rights Act described in this book.

Beiner's book is a striking example of the thoughtful and clever use of social science research findings to point to changes that will improve the operation of an important US social institution. But what is its relevance to Canadian reformers.'? Lawyers I consulted here suggested Canadian law has gone in more liberal directions than the US and that American cases are rarely, if ever, cited in Canadian sexual harassment cases today. Arjun Aggarwal, senior author of Sexual Harassment in the Workplace, in a personal communication, points out that "the U.S. procedures for resolving sexual harassment disputes and the criteria for determining the amount of compensation has had little or no effect on the Canadian system." So Beiner's book would not serve as a guide for what is needed in Canada. However, Aggarwal also argues that "developments in the U.S. and the functioning of the EEOC in resolving disputes is closely watched by Canadian employers and administrative agencies" and that "an understanding of the developments and trends in the U.S. is imperative for an appreciation of this rapidly-growing area of law." If this is what you need, read Beiner's book. Readers unfamiliar with the US setup for sexual harassment as a form of sexual discrimination should begin with Chapter 6.

K.W. Taylor

University of Manitoba
COPYRIGHT 2006 Canadian Committee on Labour History
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Author:Taylor, K.W.
Publication:Labour/Le Travail
Article Type:Book review
Date:Mar 22, 2006
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