expert testimony sexual harassment and employment discrimination

who is Anita Hill?

lawyer who was sexually harassed by her supervisor Clarence Thomas 

what is sexual harassment?

unwelcomed sexual advances, favour requests, and other verbal/physical conduct of sexual nature

how many women experience sexual harassment in their lifetimes?

at least 1/4 women

how does sexual harassment affect women in the workplace?

1. increases absences

2. reduces motivation/productivity

3. adverse impacts on career advancement

4. lower job satisfaction

what are the two types of sexual harassment?

1. quid pro quo: something for something and this for that

   1. employee must submit to unwanted sexual remarks as part of employment

   2. abuse of power related to sexual favours

   3. most clear cut form

2. hostile work environment

   1. general atmosphere of workplace where an employee is regularly subjected to unwanted sexual comments

what is the criteria for sexual harassment?

1. unwelcome

   1. plaintiffs perspective - verbal behaviours and sexual jokes; complaints can make it worse

   2. reasonable third party 

2. sex based and discrimination 

   1. creating unprofessional and sexualized environments is conducive to stereotyping, workplace disadvantages 

   2. organizational climate - work enivonrment creating high risk of sexual harassment 

   3. organizational leadership - relates to climate, what leadership is done to deal with it, policies in place and active

3. caused harm

   1. some psychological or material injury must be demonstrated

   2. if liability is established then seeking damage is another step

caused harm has two issues that court must grapple with, what are they?

1. level of harm necessary to meet legal threshold of behaviour causing harm 

2. how/from what perspective to assess harm; conduct must be severe enough; either psychological or work harm 

what are the factors in caused harm?

1. duration

2. organizations response

3. past history of victimization

what are physiological harm symptoms?

1. headaches

2. sleep difficulty

3. high blood pressure 

4. loss of job 

how do we establish unwelcome-ness?

• distinguish between consensual and non consensual conduct 

• places heavy scrutiny on alleged victim i.e. past sexual history, past abuse, mental health history

• he said/she said - importance of plaintiffs credibility 

• primary sign: overt rejection and filing a complain 

what is the least common response to sexual harassment?

filing a formal complain

what is the role of an expert for the plaintiff?

• social psych of victim blaming and stereotyping and limitations 

• arguments of plaintiffs behaviour is welcoming, men falsely read sexual interest 

• broad research may not be seen as applicable to case at hand 

what is the role of the expert for the defence?

• plaintiffs past welcomeness to sexual activity, mental health, manner of speech an dress

• may argue past abuse that led to hypersensitivity of sexual harassment 

• may argue lack of generalizability of research, methodological weak points, external validity 

what is the organizational climate?

shared perceptions of employees concerning policies, procedures, practices of organizations

• certain organizational climates can foster or discourage sexual harassment 

• if organizations tolerate it, then severity and frequency can increase 

what is perceived leadership?

perceived attitudes of organizations management regarding sexual harassment

• if leadership doesn’t view it as serious then severity and frequency will increase and less likely to be reported 

what is gender composition of workplace?

sex-skewed environments, especially women in male dominated environments who are more likely to experience sexual harassment

what causes an increased tolerance of sexual harassment?

when policies, practices, and procedures are not

• well distributed and communicated 

• backed by all management levels 

• strong in their approach 

this leads to inadequate reporting and documentation procedures, and unclear investigatory procedures 

what will an expert testify on?

how the victim perceived the behaviour or how people in general do

what are the psychological symptoms?

• depression

• anxiety 

• social withdrawal 

• PTSD

this is evaluated by an expert 

what are the work related symptoms?

• loss of job

• loss of promotion

• loss of seniority

• loss of time income

what are the challenges with assessing and demonstrating harm?

• seeking damages can hinge the demonstrating harm that would not have suffered if not for harassment 

• experts are asked to separate harms related to harassment from other harm

• the pre existing conditions are still relevant 

what are the 4 types of well established findings?

1. negative effects of gender stereotyping in workplace

2. men and women perceive sexual harassment differently 

3. not everyone complains - most people dont 

4. trauma often results from the experience of harassment 

what are the other controversial issues and findings?

• problems measuring and defining sexual harassment-psychologically and legally 

• concerns about external validity 

• problems assessing mental health and sequelae of trauma and what causes it

• lack of empirical research on efficacy of sexual harassment policies, training, procedures 

• lack of research attention to those who experience sexual harassment