THE EMPIRICAL-BASIS FOR THE REASONABLE WOMAN STANDARD

In Ellison v. Brady, the Ninth Circuit Court of Appeals said that the perspective of a reasonable woman, rather than just a reasonable perso n, should be used in deciding whether or not the plaintiff has experie nced sexual harassment. One of the assumptions underlying the Ellison opinion, traceable to findings from research, is that men and women pe rceive and define sexual harassment differently. In this article, we r eview the research to see if the conclusion is warranted. In general, the finding that women define sexual harassment more broadly and inclu sively than men is reliable, but the difference is small, often smalle r than intrasex differences, and is affected by a variety of factors, including characteristics of the study itself. After reviewing the evi dence, we evaluate the use of a reasonable woman standard, concluding that this standard is not helpful.