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83 4 A Question of Standards Reasonable Men? Reasonable Men and Sexual Harassment Even if the court agrees that the behavior directed at Jonathan Martin occurred because of sex, Martin must still convince the court that the harassment was sufficiently severe or pervasive to alter the terms or conditions of his employment. This is both a subjective and an objective test. The behavior must have subjectively polluted Jonathan Martin’s work environment. And, it must be sufficiently severe or pervasive to create a hostile working environment for a reasonable person under the circumstances at the Miami Dolphins (Harris v. Forklift Systems, Inc. 1993). The courts do not require significant proof to satisfy the subjective standard. Martin told his parents on a number of occasions that he was upset by his treatment; he later walked off the job and committed himself to a mental institution. Given these facts, it is likely that Martin will not have difficulty meeting the proof requirements imposed by the subjective test. In contrast, courts exact high standards when it comes to objective proof of severity or pervasiveness. These standards are particularly confusing when the alleged victims are men, whether the alleged harassers are women or other men. Whenamanisthevictimofawomanwhosexuallyharasseshim,courts downplay the harm caused by the sexual harassment. In fact, courts seem to believe that the man is lucky or, even if not, that it is not manly to complain about a woman’s harassment of him (E.E.O.C. v. Prospect Airport Services , Inc. 2010). When a man is a victim of harassment by another man or, in the more common case, a group of men, the courts often dismiss the behaviorasnormalroughhousingamongmenthatdoesnotmeetthestandard of severity or pervasiveness (E.E.O.C. v. Harbert-­Yeargin, Inc. 2001). This chapter discusses both scenarios: the proper standard for proving severity or pervasiveness where the man is a victim of a woman’s 84 | A Question of Standards sexual advances, and the proper standard where the man is a victim of harassment by a group of other men.1 Masculinities research can help courts answer the thorny questions about the standard in both instances. In fact, masculinities research can uncover hidden biases and invisible gender issues that the courts often do not perceive. The first example—­ where a woman harasses a man at work—­ comes from E.E.O.C. v. Prospect Airport Services, Inc. (2007). The second, where a group of men harasses a man, is the hypothetical case based on what we know about Jonathan Martin’s complaints. Before moving to a thorough discussion of those examples, however, in the next subsection I offer a short history of the reasonable person standard. History of the “Reasonable Person” Standard and Current Jurisprudence Although the Supreme Court has not directly addressed the question of whether the proper objective standard is the “reasonable person,” the “reasonable victim,” or the “reasonable woman” standard, the Court has used the term “reasonable person” in determining whether the victim meets the objective requirement of severity or pervasiveness. In a few circuits, courts have used the reasonable woman standard. When the victim is a man or a person of color, the Ninth Circuit has adapted the standard to be the “reasonable person with the same identifying characteristics ,” the “reasonable man,” or the “reasonable Latino man” standard. The law in the United States uses the reasonable person standard in a variety of disciplines, including constitutional law, negligence, criminal law, commercial law, and employment discrimination (Chamallas 2010; Moran 2010; Wang 2010). Depending on the area and the particular case, the standard plays different roles. In negligence and criminal law, for example, it determines the culpability of the defendant, including the availability of a justification or defense (Moran 2010). In Title VII law, it has a different purpose: it examines the plaintiff’s story in light of community norms to determine whether the defendant’s (or its agent’s) alleged behavior creates a hostile working environment. A plaintiff in these cases must prove that he or she subjectively experienced a hostile working environment and that the gender-­or sex-­ based behavior was sufficiently severe or pervasive to alter the terms or conditions of em- A Question of Standards | 85 ployment of a reasonable person (Harris v. Forklift Systems, Inc. 1993; Meritor Saving Bank v. Vinson 1986). Thus, the reasonable person (or woman or victim) standard in hostile work environment law plays a perspectival rather than a culpability-­ determining function (Moran 2010). Unlike in negligence law, where the reasonable person...


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