Encyclopedia of Psychology and Law

In addition to using expert testimony to help jurors

make good decisions in sexual harassment trials, some

researchers have suggested that experts should exam-

ine plaintiffs in sexual harassment cases for evidence

of prior sexual abuse (which these experts have sug-

gested may have caused the sexual harassment),

termed the abuse excuse.Most scholars have rejected

this hypothesis, demonstrating that it is based on

flawed logic and is fundamentally false according to

the empirical literature in the area. In addition to its

flawed basis, testimony based on the abuse excuse

does not have the expected effect on juror judgments

in sexual harassment cases. In one study, jurors were

less likely to find in favor of the defense if an expert

testified using the abuse excuse argument compared

with if the defense expert testified more traditionally

(with an opposing expert) or did not testify at all.

Jurors’ Common Understanding

of the Consequences of

Sexual Harassment

Some experts have argued that plaintiffs should claim

ordinary or garden variety damages (e.g., sadness, loss

of enjoyment) rather than claiming injuries in sexual

harassment cases (e.g., Posttraumatic Stress Disorder),

so that the plaintiff’s mental health does not become a

subject of controversy. Claiming an injury could result

in a compelled mental health examination by a defense

expert. However, claiming garden variety damages

assumes that jurors have a general understanding of the

harms experienced by targets of sexual harassment.

Research comparing jurors’ and experts’ perceptions of

the harms experienced by sexual harassment targets in

several different workplace scenarios suggests that

jurors consistently underestimate the amount of harm

experienced by targets in both sexual harassment sce-

narios and other stressful workplace situations. Thus,

such litigation strategies may be more detrimental than

helpful to the plaintiff’s case.

Damage Award Decisions

If the defendant is found liable for sexual harassment,

victims of sexual harassment may also recover both

compensatory damages (designed to restore the victim

to the state prior to the injury) and punitive damages

(designed to punish the defendant for behavior that

was particularly egregious and deter others from acting

similarly). Thus, in addition to determining liability,

the jury is also given the task of determining damages.

Generally, jurors award damages appropriately in civil

cases. However, given the difference between the psy-

chological nature of the harm in sexual harassment

cases and the physical harm alleged in most other civil

cases, there may be a discrepancy in how jurors award

damages, and researchers have just begun to investi-

gate juror allocation of damages in sexual harassment

cases. In one study, researchers demonstrated that

jurors inappropriately awarded compensatory damages

in a sexual harassment case, confusing harassment

severity with pain and suffering. However, jurors did

correctly award punitive damages as a function of the

behavior of the organization. In addition, juror gender

did not have an effect on damage award amounts,

counter to the robust gender effect found in liability

decisions.

Lora M. Levett

See alsoDamage Awards; Sexual Harassment; Story Model

for Juror Decision Making

Further Readings

Blumenthal, J. A. (1998). The reasonable woman standard: A

meta-analytic review of gender differences in perceptions of

sexual harassment. Law and Human Behavior, 22(1), 33–57.

Gutek, B. A., O’Connor, M. A., Melancon, R., Stockdale, M.

S., Geer, T. M., & Done, R. S. (1999). The utility of the

reasonable woman legal standard in hostile work

environment sexual harassment cases: A multimethod,

multistudy examination. Psychology, Public Policy and

Law, 5,596–629.

Kovera, M. B., & Cass, S. A. (2002). Compelled mental health

examinations, liability decisions, and damage awards in

sexual harassment cases: Issues for jury research.

Psychology, Public Policy and Law, 8(1), 96–114.

O’Connor, M., Gutek, B. A., Stockdale, M., Geer, T. M., &

Melancon, R. (2004). Explaining sexual harassment

judgments: Looking beyond gender of the rater. Law and

Human Behavior, 28(1), 69–95.

Rotundo, M., Nguyen, D. H., & Sackett, P. R. (2001). A

meta-analytic review of gender differences in perceptions

of sexual harassment. Journal of Applied Psychology,

86,914–922.

Wiener, R. L., & Gutek, B. A. (1999). Advances in sexual

harassment research, theory and policy. Psychology,

Public Policy, and the Law, 5,507–518.

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