discrimination law, all the scientific literature eventually
comes into contact with the law either as a starting point
that shapes judgments of responsibility or as an ending
point to address issues of discrimination. Therefore, it is
helpful to organize the literature around the law.Federal Sexual Harassment Law
Title VII of the Civil Rights Act of 1964 (amended in
1991) prohibits an employer from discriminating with
respect to compensation, terms, conditions, or privileges
of employment because of race, color, religion, sex, or
national origin. With respect to sex, Title VII prohibits
employers from exacting sexual contact in exchange for
compensation or advancement (quid pro quo harass-
ment) and from subjecting workers to abusive or hostile
working environments because of their gender. In 1986,
in Meritor Savings Bank v. Vinson,the U.S. Supreme
Court upheld a liability finding against an employer who
subjected a worker, because of her sex, to unwelcome
misconduct that was “sufficiently severe or pervasive to
alter the conditions of employment and create an abusive
working environment.” After the Court heard Harris v.
Forklift Systems, Inc.in 1993, hostile work environments
required subjective (the victim actually experienced abu-
sive conduct) and objective tests (a reasonable person
would have found the conduct abusive). More recently,
in its 2001 term, the Supreme Court affirmed in Clark
County School District v. Breedenlimits for the “severe
or pervasive” test, holding that a comment and a chuckle
were insufficient to define a hostile work environment.
However, going the other way (increasing Title VII pro-
tection), the Court prohibited intragender harassment:
“Nothing in Title VII necessarily bars a claim of dis-
crimination ‘because of...sex’ merely because the
plaintiff and the defendant (or the person charged with
acting on behalf of the defendant) are the same sex” in its
holding in Oncale v. Sundowner Offshore Services, Inc.
(1998). In recent times, the majority of cases brought to
the Equal Employment Opportunity Commission and
the courts are hostile work environment theories of lia-
bility. Psychologists find these cases most interesting to
study as well.
To determine whether unwelcome social sexual con-
duct reaches the threshold of a hostile work environ-
ment, most courts adopt the reasonable person test,
which according to Rabidue v. Osceola Refining Co.
(1986) is “the perspective of a reasonable person’s reac-
tion to a similar environment under essentially like
or similar circumstances.” Other courts emphasize dif-
ferences in how men and women view social sexualconduct. Specifically, in Ellison v. Brady(1991), the
Ninth Circuit held that “a female plaintiff states a prima
facie case of hostile environment when she alleges con-
duct which a reasonable woman would consider suffi-
ciently severe or pervasive to alter the conditions of
employment and create an abusive working environ-
ment.” In Fuller v. City of Oakland(1995),the Ninth
Circuit clarified this standard, holding that “whether the
workplace is objectively hostile must be determined
from the perspective of a reasonable person with the
same fundamental characteristics” as those of the plain-
tiff. After the intragender holding in Oncale,the rea-
sonable victim test looks to the background (e.g.,
gender, race, and age) of the complainant as well as the
context of the conduct (e.g., persistence, status, and
sexual orientation of the participants). Thus, the rea-
sonable victim standard is a semisubjective test, which
is concerned with whether a reasonable person with the
same key attributes and in a situation similar to the
complainant would find the offensive conduct suffi-
ciently hostile to violate Title VII. While the issue of
appropriate legal standard remains open today, after
Harristhere has been movement in most (but not all
circuits) toward a more objective reasonable person
test.
In Burlington Northern v. White,a recent 2006 case
defining retaliatory action in hostile work environ-
ment sexual harassment, the Court reiterated that
there are two types of hostile work environment
claims. One type involves a tangible work action (e.g.,
hiring, firing, promoting, changing work assignments)
in which defendants are strictly liable (if their super-
visors were responsible for the tangible actions), and
the second type creates abusive conditions through
other conditions of employment (such as sexual com-
ments, pornography in the work place, unwanted
requests for dates). Interestingly, Justice Samuel
Alito’s dissenting opinion in Burlington Northern
pointed out confusion about whether the reasonable
person is an objective test (ignoring plaintiff attrib-
utes) or a subjective test that takes into consideration
the complainant’s individual characteristics (i.e., age,
gender, race, family relations). Justice Alito’s opinion
in Burlingtonsuggests that the issue of objective ver-
sus subjective standard may soon become an impor-
tant concern in this area of jurisprudence. There is
need for more work that examines the power of the
reasonable victim test to sensitize workers to gender,
racial, and sexual orientation differences. Knowledge
about how legal standards influence workers’ judg-
ments should be of interest to social scientists,736 ———Sexual HarassmentS-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 736