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

6 The Reasonable Woman after Harris v. Forklift Systems

The Reasonable Woman after Harris v. Forklift Systems After Harris, courts still disagree about whether to apply the reasonable woman or the reasonable person standard to the hostile work environment determination. We believe that shifting the boundary between acceptable and unacceptable workplace behavior by applying the reasonable woman standard will help accomplish the goal of equality in the workplace. This standard, fleshed out to require respectful treatment consistent with equality, will affect the outcome in cases on the margin and encourage employers to create workplace norms that foster treating women as workers rather than as sex objects or intruders. The post-Harris cases in this chapter illustrate how the reasonable woman standard might make a difference in close cases—cases in which a jury could plausibly decide in favor of either party. Three of the cases arose in the Seventh Circuit, well known for its smart but conservative judges. The fourth case, which arose in the Fourth Circuit , starkly demonstrates why harassment law must address antiwoman conduct even when that conduct is not explicitly sexual. Most harassers choose to harass. The following cases show that harassers can and do change when faced with serious consequences. In every case where a superior told the alleged harasser to stop or be penalized, he stopped. And in every case where the harasser was the boss, he stopped when warned about the liability risks. If continuing —or starting—to harass will cost them professionally or economically , harassers change their behavior. They can behave like reasonable women—they simply choose not to unless the cost becomes too high. 6 97 Once a Model, Always a Model: Dellert v. Total Vision, Inc. Dellert v. Total Vision, Inc. was decided in 1995. The trial judge refused to allow the case to be tried because she concluded that, based on the essential facts, no reasonable person could find that the challenged conduct created a hostile work environment. In this case, the only voice is that of the judge who dismissed the case. She uses a paper record based on pleadings and supporting documents to present the facts in a way that justifies the outcome she reaches. When there are ambiguities, we are left to conjecture. A trial would have fleshed these ambiguities out and required the decision makers to observe and listen to witnesses subjected to cross-examination. The plaintiff should be denied her day in court only when the outcome is clear. Had the judge applied a reasonable woman standard that requires a woman to be treated with respect in the workplace, a jury probably would have been allowed to decide whether plaintiff was sexually harassed. Instead, the judge held that under the reasonable person standard, the alleged harasser’s conduct was so clearly legally permissible that a jury must not be allowed to decide otherwise. The plaintiff, Jill Dellert, was hired for an entry-level optician position at Total Vision, Inc. (TVI). All the other employees mentioned in the judge’s opinion were men. The alleged perpetrator, Tony Mackin, like the defendant in Harris, was the company president. However, because Mackin lived in California and the store where Dellert worked was in Chicago, he played no part in hiring Dellert. Before being hired by TVI, Dellert worked as a model of sportswear, casual wear, and business attire. The judge deemed it necessary to mention in her written opinion that Dellert had, on one occasion, modeled lingerie for Sears and included in her modeling portfolio some photos of herself “in a conservative swimsuit.” The opinion is silent as to whether anyone at TVI ever saw this portfolio, during the hiring process or later. While Dellert worked at TVI, Mackin visited the Chicago store four or five times. He also phoned the store regularly for both business and “chitchat.” Soon after Dellert began working, Mackin visited and, on meeting her, commented on her previous work as a model and on the fact that she was engaged. His remarks did not offend Dellert, but she thought they were unnecessary. Two weeks after Dellert started her job, Mackin visited again. While looking at a new shipment of eyeglasses, Mackin asked Dellert to try 98 | The Reasonable Woman after Harris v. Forklift Systems on a pair. When she did, he commented that they would look much better on her if she wasn’t wearing a skirt. A male employee was present in the store when this incident occurred, but...