Encyclopedia of Psychology and Law

more likely than men to self-reference and, therefore,

were more likely to find for the plaintiff. Research

expanding on this relationship found that attitudes of

hostile sexism mediated the relationship between gen-

der and self-referencing, in that men were more likely

than women to hold attitudes of hostile sexism, and

therefore, men were less likely to self-reference than

women. In addition, those jurors who were higher in

self-referencing (typically women) also rated the plain-

tiff’s credibility higher than those who were low in self-

referencing; those who rated the plaintiff’s credibility

higher were more likely than those who rated the plain-

tiff’s credibility lower to render a judgment in favor of

the plaintiff.

Further research replicated and extended this

model to show that the content of expert testimony

may affect jurors’ tendencies to self-reference. In this

study, self-referencing was a significant mediator for

jurors who heard traditional forms of expert testimony

but not a significant mediator for jurors who heard

expert testimony from a traditional plaintiff expert and

a defense expert who included information about the

plaintiff’s history of childhood sexual abuse (CSA) as

a possible cause of the harassment. Thus, jurors were

most able to relate to the plaintiff who had no history

of CSA rather than to the plaintiff with a history of

CSA and, therefore, only self-referenced in those con-

ditions with no claims of prior CSA.

Other researchers used the story model for juror

decision making as a basis for explaining jurors’ deci-

sions in sexual harassment cases and accounting for

the gender difference in juror decisions. These

researchers showed that the story endorsed by the

jurors (either proplaintiff or prodefense) mediated the

relationship between juror gender and juror decisions.

Women were more likely to endorse a proplaintiff

story than men (who were more likely to endorse a

prodefense story), and therefore, women were more

likely than men to render a verdict for the plaintiff.

The Effect of Legal

Standard on Juror Decisions

To find an employer liable for HWE sexual harassment,

jurors are instructed that not only must the plaintiff show

that she experienced discrimination based on gender, but

she must also show that the behavior must have been so

severe and pervasive that a reasonable person would

believe that the conditions of employment were altered

or that the working environment was hostile. This rea-

sonable person standard is reflective of the unique nature

of sexual harassment compared with most other tort

claims—namely, that it involves a subjective component.

Because of the gender differences in perceptions of sex-

ual harassments, some courts have adopted a “reasonable

woman” standard instead of the reasonable person stan-

dard traditionally used in sexual harassment cases.

The thought behind using a reasonable woman stan-

dard is that men and women differ in their perceptions

of sexual harassment, so the decision maker should

adopt the perspective of the victim (who is most likely

a woman) when deciding whether the behavior in ques-

tion is sexual harassment. Despite these good inten-

tions, researchers have found little to no effect of legal

standard on juror decisions in sexual harassment cases.

Researchers have conducted several studies, varying in

ecological validity and with different types of partici-

pants and have found little to no evidence that using a

reasonable woman standard as opposed to a reasonable

person standard diminishes the gender effect. It is pos-

sible that using the reasonable woman standard is inef-

fective in attenuating the gender gap in juror decisions

because jurors may not notice the difference in stan-

dard. Scholars have also postulated that jurors may not

understand the differences between a “reasonable per-

son” and a “reasonable woman” or may ignore the rea-

sonable woman standard in their decision making.

The Effect of Expert

Testimony on Juror Decisions

Experts have suggested that perhaps expert testimony

addressing the differences between the reasonable

woman and reasonable person standards and/or expert

testimony addressing gender differences in juror deci-

sion making about what behavior constitutes sexual

harassment may help reduce the gender gap in decision

making in sexual harassment cases. Some research sug-

gests that this may be a successful strategy. In one

study, researchers examined the effect of expert social

framework testimony, addressing the effects of gender

stereotyping on juror judgments. The expert testimony

did not affect women’s judgments, but men were more

likely to find for the plaintiff in conditions with expert

testimony than in conditions without expert testimony.

The gender gap was not completely eliminated, but this

research shows the potential of expert testimony to aid

juror decisions.

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