A Law of Her Own: The Reasonable Woman as a Measure of Man

5 Gender, Race, Sexual Orientation, and the Reasonable Woman

Gender, Race, Sexual Orientation, and the Reasonable Woman As the cases in the previous chapter demonstrate, the reasonable person standard represents a male perspective. When applied in hostile work environment sexual harassment cases, it disadvantages women and perpetuates sex discrimination and inequality in the workplace . Accepting this claim of injustice, an important question remains: Is the reasonable woman, as we define it, the appropriate standard for gendered injuries, regardless of the gender, sexual orientation, or race of the parties involved? In most cases our answer is yes. In this chapter we discuss why the reasonable woman standard is the best solution in almost all instances where sexist or sexual harassment is involved. We also believe that the reasonable woman standard should apply in most cases of stalking, domestic homicide, and rape, for analogous reasons. When men or women sexually harass others, they take on a stereotypically masculine role that derives pleasure and self-regard from dominating others. It doesn’t matter who—that is, which sex—takes on this role, even though it has been starkly gendered in our culture. Taking on or endorsing the “female” or the “male” role when those roles remain characterized by subordination and dominance, respectively , simply perpetuates gender inequality and legal bias. We therefore argue that the reasonable woman standard should apply regardless of the gender of either the perpetrator or the target, so that the basic paradigm can change—so that masculine and feminine stereotypes can be broken down. As discussed below, we also believe that in most situations the reasonable woman standard should apply regardless of the race or sexual orientation of either the perpetrator or the target, because when the harm is sexual or sexist, it is this aspect of an individual’s personhood that is at issue. 5 70 The most effective way to apply our standard is to ask the decision makers how a reasonable woman would view the perpetrator’s and the target’s behavior. In particular, they should assess whether the perpetrator behaved as a reasonable woman would have in similar circumstances . When the parties involved do not fit the traditional male-onfemale mold, decision makers should be instructed to transpose the facts into male-on-female and then apply the reasonable woman standard to those facts. In this way, decision makers will be asked to think in terms of how a reasonable woman would act and should be treated in a situation like the one they are addressing. This standard of behavior has the potential to transform the workplace . The reasonable woman standard respects other workers’ bodily integrity, agency, and personal autonomy and expects the same in return . Applying the reasonable woman standard to all workers raises the standard of acceptable workplace behavior and improves working conditions for everyone. Conveying the political message inherent in combining the terms reasonable and woman—that women are reasonable and their values should be everyone’s values when it comes to workplace gendered conduct—is essential at this stage. Law can change behavior. And numerous studies of intergroup processes demonstrate the maxim that attitudes follow behavior. For example, Charles Moskos and John Sibley Butler studied how forced changes in behavior in the military changed racial attitudes. Demanding that everyone act like reasonable women when it comes to sex and sexism in the workplace appropriately assumes that men can learn to take responsibility for their treatment of others and to behave more respectfully . For many men, this change in behavior will also lead to a change in attitude. We want the phrase “reasonable woman” to resonate with decision makers, employees, employers, and the public in general, so that gender will matter by making a positive difference in the lives of women workers and, eventually, all workers. Female-on-Male Sexual Harassment Applying the reasonable woman standard when a woman sexually harasses a man treats his injury more seriously and respectfully than under a reasonable person/man standard. People assume, with some justification, that men usually welcome sexual conduct. Studies such as Gender, Race, Sexual Orientation, and the Reasonable Woman | 71 those examined by Barbara Gutek in Sex and the Workplace and by John Pryor, Janet Giedd, and Karen Williams in “A Social Psychological Model for Predicting Sexual Harassment” show that sex in the workplace has fewer negative effects on men than on women. Thus, applying a male or “neutral” standard to a female perpetrator excuses conduct that would be unacceptable...