Gender is Important in Sexual Harassment Litigation

A recent article, “The Role of Gender in Sexual Harassment Litigation”, examined the effects of litigants’ gender on the outcome of a simulated civil trial. My co-author and I utilized a factual scenario involving an employee who was sexually harassed by a supervisor while both individuals were on an out of town business assignment. Key aspects of an actual civil trial were contained in the research, including each jury deliberating until a unanimous verdict was reached.

Everyone was presented with an identical set of case facts, with one important exception: half of the juries believed the plaintiff was female and the defendant was male, while the other half of the juries believed the plaintiff was male and the defendant was female. (We also varied the race of the litigants; for more information on the study as a whole, please contact this author.) To our knowledge, ours is the first experimental study to involve a direct comparison of male to female and female to male sexual harassment. As a result, many of our findings were quite unexpected.

We found that the gender of the plaintiff and defendant had strong effects on jurors’ liability and damages decisions. College students comprised half of our juries; students blamed the plaintiff less and the defendant more when the plaintiff was male and the defendant was female. The other half of our juries were made up of jury eligible citizens, who made no gender based distinction in blaming the plaintiff, but who nevertheless blamed the male defendant more than the female defendant. College students awarded more damages to the female plaintiff, while jury eligible citizens awarded more damages to the male plaintiff. An examination of comments made during jury deliberations revealed that most comments centered on the plaintiff’s conduct, regardless of the litigants’ gender. Comments about the defendant’s conduct, however, varied considerably depending on whether the defendant was a man or a woman. For example, when the plaintiff was female and the defendant was male, deliberations comments about the defendant centered on males’ preoccupation with sex. When the plaintiff was male and the defendant was female, however, comments focused on the defendant’s unusual aggressiveness.

There were many other compelling findings in our study of jury behavior. The implications of the results are far reaching for managers, human resources professionals, CEO’s and general counsel who are faced with an increasingly diverse subgroup of employees who become litigants in sexual harassment cases. Many of the results centered around the unusual/atypical gender conduct of both parties when a man is harassed by a woman. In this scenario, the male plaintiff is likely to be blamed less and compensated more than his female counterpart in an identical situation. It appears to us that jurors were trying to justify their decisions when the harassment did not fit the usual female victim-male harasser pattern. In contrast, when the plaintiff was female and the defendant, male, the pattern that is most familiar to jurors, no justification was required for jurors’ decisions.

Why are these results important to corporations and their management? The study’s results are important because a growing number of sexual harassment cases do not fit the traditional pattern upon which corporations have developed mechanisms to defend legitimate claims and to dismiss, out of hand, spurious accusations. Traditional ways of litigating sexual harassment cases are likely to be ineffective when female to male (not to mention male to male or female to female) harassment is at issue. Ignoring or minimizing unusual aspects of a sexual harassment lawsuit will not be in the corporation’s best interest; instead, the CEO, manager, human resources executive, and general counsel must obtain all available information that will provide an “early warning” of the likely case outcome. Because sexual harassment cases appear to be an ever-present byproduct of workplace interaction, corporations are well advised to keep an open mind about all of the factors which make each case unique.

Author’s note:
Melissa Pigott, Ph.D., is co-owner and Director of Research at Magnus Research Consultants, Inc. She consults with attorneys nationwide on all types of trial and jury research.