Feminist Legal Studies (2005) 13:391–394 DOI 10.1007/s10691-005-9003-9

Ó Springer 2005

BOOK REVIEW

Theresa Beiner, Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law, New York: New York University Press, 2004, 261 and x pp., ISBN 0-8147-9917-5 This book is both a welcome addition to the literature on sexual harassment and an interesting contribution to what has been labelled ‘‘social analytic jurisprudence’’, viz. the use of social science data to inform legal analysis. Those familiar with judicial handling of sexual harassment claims will be aware that judges often fail to understand the nature of harassment, leading them to articulate unhelpful legal standards, or rejecting claims on the basis of unfounded assumptions. The book offers a perceptive critique of this case law by contrasting it with the realities of sexual harassment drawn from studies of sexual harassment by psychologists, sociologists and behavioural theorists. The book considers the main constituent elements of a sexual harassment claim and each chapter follows a similar pattern: first the relevant legal standard, as embodied in U.S. Supreme Court precedent, is set out, followed by a critical evaluation of it and of how lower courts have applied the standard. Then, social scientific evidence is explored to expose how the law is out of line with the realities of sexual harassment, followed by recommendations for law reform in the light of the evidence. The result of this method is to suggest some changes to the application of the elements necessary to establish a sexual harassment claim to increase the chances of successful litigation. The book does not call for a fundamental reconsideration of sexual harassment claims, rather it focuses on remedying the gap between the realities of sexual harassment and the gender myths which courts use in sexual harassment litigation. As the author writes, ‘‘small steps tend to provide the best hope of affecting actual results in real cases’’ (p. 40). For the most part, the argument is fairly compelling. For instance in Chapter 1 the social science evidence clearly shows that what people understand as harassment is considerably wider than what the judicially created reasonable person considers to be harassment. Moreover, in Chapter 2 data shows that there is no major gender gap between what men and women understand to be harassment, which

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leads to a suggestion that neither the reasonable person nor the reasonable woman standard is the best way of determining whether conduct is harassment but rather that examining data on what people tend to perceive is harassment holds more promise. At times, however, the social science evidence is used in ways that are more problematic. For instance in Chapter 4 where the author discusses the problems that the courts have had in determining whether the harassment is ‘‘because of sex’’. The social science literature discussed is about what factors cause sexual harassment in workplaces. The resulting suggestion is that courts are made aware of whether the plaintiff’s workplace has those attributes that have been shown make harassment more likely. While this cannot hurt in giving judges a more complete picture, sexual harassment probably occurs in environments that lack the attributes identified, so the relevance of background information about the workplace may advantage some plaintiffs, but disadvantage others. Perhaps a more constructive approach when faced with evidence that certain workplace conditions are more likely to cause harassment is to recommend health and safety type legislation to regulate the workplace rather than merely rely upon damages claims to make workplaces less conducive to sexual harassment. At other times, the social scientific evidence does not support the entirety of the recommendations. For example, Chapter 6 considers vicarious liability, where the Supreme Court designed a defence in cases where the hostile environment which constitutes harassment is created by the plaintiff’s supervisor. The employer has a defence if reasonable care was exercised to prevent and correct harassment and the plaintiff failed to take advantage of the opportunities provided by the employer. On the second limb of this test there is considerable, compelling evidence that women are reluctant to report harassment, and thus the second limb is poorly designed. In interpreting the first limb of this test the courts have set a low standard for employers, whereby the presence of an anti-harassment policy often suffices as evidence that the employer has taken reasonable care. The author recommends a higher standard of reasonableness, at times amounting to demanding proof that a given anti-harassment programme works to eliminate discrimination before the defence can apply (p. 156). This asks too much, especially when the social science evidence is ambiguous as to what kind of anti-harassment policies work. So here the social scientific research does not seem to help in designing an improved legal standard. On the other hand, it may be argued that

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the advantage in the judicial standard is that it allows employers to experiment with different models of anti-harassment policies which are context specific. The author refers to a wide range of social science literature, but not to economics; however when deterrence is considered, economic analysis might have been useful. In discussing vicarious liability and the employer’s defence in Chapter 6 the author suggests that the defence, when successfully invoked, should only eliminate the employer’s liability to pay punitive damages, and not compensatory damages. The argument is that compensatory damages also serve to deter the defendant. However, deterrence works by imposing a meaningful penalty if the defendant fails to act; if a penalty is imposed even when the defendant has set up a working anti-harassment policy, the incentive to have these schemes may vanish if damages are payable anyway. Here the author might have considered the law and economics literature on deterrence to explore further what kind of vicarious liability scheme might best deter defendants. Deterrence is also a theme in Chapter 7 on damages. Under the Civil Rights Act, damages are capped at fairly low levels, and as the studies used show this under-compensates victims of sexual harassment and thus should be scrapped. The author then infers that because damages are capped this under-deters the employer. Aside from seeming to contradict the recommendations in Chapter 6 (unless the recommendations in these two chapters are to be read together, as implied at p. 207), the latter assumption required closer verification as adverse publicity, or the likelihood that one successful claim may lead to more lawsuits against an employer, might impact on deterrence. Moreover, one of the key arguments in favour of caps seems to be the wish not to cripple industry under the weight of lawsuits; it would have been worthwhile considering how far this risk is real or assumed. The chapter shows that fears of exaggerated jury awards is unfounded, but the question is whether even ‘‘accurate’’ compensatory and punitive damages awards might be so high as to harm industry. Surprisingly, there is no consideration as to whether getting rid of juries might serve to improve the quality of damages awards, but perhaps the totemic value of juries in the U.S. legal system is too revered for their elimination to be considered. Too often lawyers and social scientists do not interact. It is refreshing to read a work which brings diverse disciplines together. The book is clearly written, although at times a reader unfamiliar with U.S. law and procedure might struggle with the intricacies of the

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legal system. A bibliography would have been a helpful addition. The book should be read by both lawyers and social scientists interested in this field, and may well be a catalyst for further joint research to gather a fuller understanding of this harmful workplace problem. GIORGIO MONTI

Law Department London School of Economics Houghton Street London WC2A 2AE UK E-mail: [email protected]