Why Don't 'Reasonable Women' Complain About Sexual Harassment?

Abstract

In this article, I examine the manner in which the lower federal courts have applied the affirmative defense to liability for supervisory sexual harassment, which was articulated by the United States Supreme Court in the 1998 cases of Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. In particular, this article focuses on the second prong of that affirmative defense, which requires that employers prove that employees who are targeted for sexual harassment failed to act reasonably in responding to the harassing conduct. The article explores the conclusion of most of the federal courts to examine the issue that the failure to immediately file a formal complaint about harassing conduct constitutes unreasonable conduct on the part of the target of harassment. The article then addresses the ways that women typically respond to sexual harassment, referencing empirical research, and explains why women reasonably fail to immediately file formal complaints concerning harassing conduct. Finally, the article explores the ways in which the reasonable woman standard might be used by courts in judging the reasonableness of women's conduct in response to sexual harassment under the affirmative defense.

Keywords: employment, discrimination, meritor, EEOC, Title VII

JEL Classification: J70, J71, J78, K31