The Reasonable Man Standard, Extended Version
By Rod Van Mechelen
In sexual harassment cases, the behavior must be considered explicitly sexual by a reasonable victim. If the victim is a woman, it's a reasonable woman standard. If the victim is a man, it's a reasonable man standard. -- Rita Risser, Managing Within The Law
The Reasonable Woman
The reasonable woman standard reflects the difference between the female ethic of care and the male ethic of rights. In the ethic of care, rules are made by the top-hen in the pecking order. In female cliques, the rules of their games come from the participants, and these rules can be very subjective, very arbitrary, and highly malleable. This is not necessarily a bad thing. In the small family group, children often rely on their mothers' spur-of-the-moment rule making to survive.
Men, however, generally look to society, their employer and their teachers for universal principles. Rules that apply in all times and places. In the common male paradigm, exceptions to general rules are acceptable if justifiable, but they are not the norm. Within the female ethic of care, however, exceptions are as common as the rules themselves.
Whether the ethic of care or the ethic of rights is better is not relevant here. What is, is that the institutionalization of the female ethic of care as law via the reasonable woman standard infantilizes men.
American men evolved our codes of law based on rights and more or less objective rules. (Women have participated in this process, of course. Like prohibition and the reasonable woman standard, however, where their participation has been most notable, it has also been most destructive.) The kind of rules necessary to nurture a growing civilization. Prosperity requires rules that don't change on a whim. Rules that apply equally to all regardless of who they are. When the rules of society are arbitrary, as they often are in fascist states, privilege undermines prosperity as who you can influence (political power) becomes more important than either fairness or the facts.
Presently, this is the precise basis upon which the reasonable woman standard stands. The judge and jury are now required by this standard to be influenced by the female plaintiff's spur of the moment feelings. The fact the defendant behaved similarly, if not identically to many other women and men with whom the plaintiff had and continues to have social intercourse is irrelevant. That in all fairness he should be judged by the same standard, and bound by the same rules as all of these other women and men is thrown right out the door. Fairness and facts no longer hold sway, all that matters is how the plaintiff felt, and that enough women could sympathize with her to qualify her feelings as "reasonable."
Effectively, adult men are now being ruled in the work place by the inconstant code of conduct women impose upon children. In the news and media, pop-feminists have portrayed men as little more than childish bullies, and with that "truth" as their banner, they have successfully broken down the walls of justice to demand special consideration, political power, and privilege for women.
Few women fully agree with this, yet, it demands a response. Short of violent backlash, our one most virtuous and reasonable reply to the uniquely female reasonable woman standard is the now uniquely male reasonable man standard.
The "Reasonable Woman" standard is a recent innovation of the 9th Circuit Court of Appeals. Previously, there was only a reasonable victim standard that was commonly called the "Reasonable Man" standard. As discussed in Chapter one, the Court determined, in Ellison v. Brady, that in the context of sex, sexual behavior and sexual violence, women are more sensitive to some things than men, that this is reasonable, and that women were not being adequately protected by a standard that included the male perspective. Hence, the need to judge men's behaviors by women's standards. (The Court did not address what criteria would be used to assess allegations of sexual harassment by a superior or co-worker of the same sex. It would be interesting to see what generalizations the courts might allow in determining how a reasonable woman would respond to identical harassing behaviors from a heterosexual male and a homosexual female, and if the homosexual community would protest generalizations made about them as discriminatory and prejudicial.)
This received a lot of press during the Thomas-Hill hearings, but what was not well-publicized is that at the same time the Court established a uniquely female "Reasonable Woman" standard, it also provided for a uniquely male "Reasonable Man" standard:
Of course, where male employees allege that co-workers engage in conduct which creates a hostile environment, the appropriate victim's perspective would be that of a reasonable man. (Ellison v. Brady, 924 Federal Reporter 2d Series, p 879)
Thus, there is no need to argue for the creation of a reasonable man standard since the Court already recognizes its validity. Beyond this, however, it is justified by the same arguement Catharine MacKinnon uses to justify a uniquely female reasonable woman standard:
(W)omen's experiences, expressed in their own way, can push to expand that concept. Such an approach not only enriches the law. It begins to shape it so that what really happens to women, not some male vision of what happens to women, is at the core of the legal prohibition. (Sexual Harassment: The Experience, by Catharine MacKinnon, in Sexual Harassment: Know Your Rights!, by Attorneys Martin Eskenazi and David Gallen, p 19)
Similarly, we may argue that, where the reasonable man standard is concerned, only men's experiences must be allowed to "shape it so that what really happens to (men), not some (female) vision of what happens to (men), is at the core of the legal prohibition."
What we need to do, therefore, is determine what such a uniquely male standard might be. Within the context of sex, that means men must determine how a male victim's perspective would differ from a female victim's perspective.
Recall from chapter one that "a hostile environment exists when an employee can show (1) that he ... was subjected to sexual advances ... or other verbal or physical conduct of a sexual nature, (2) that this conduct was unwelcome," and that "EEOC guidelines describe hostile environment harassment as 'conduct [which] has the purpose or effect of unreasonably interfering with an individual's work performance."
How would this apply to men? Within these parameters, what female behaviors would qualify as hostile environment sexual harassment?
The context of sex and sexual behaviors encompasses sexual lust, sexual violence, sexual power, gender-role socialization, sex discrimination and sexual opportunity. It is within these areas that sexual harassment of both women and men occurs and must be defined. Pop-feminists would have us believe men hold a virtual monopoly on sexual violence, power and discrimination because, ostensibly, we live in a "man's world." By this logic, it is almost impossible for women to harass men.
This ignores that the abundance of sexual opportunities the average woman has compared to sexual opportunities for men the way the abundance of food in America compares to starvation in Africa. Hence, if this truly is a "man's world," then the world is suffering from chronic sexual scarcity syndrome, and it is here women often harass men.
The Sexual Scarcity Syndrome
In the "man's world," sexual opportunities seem scarce primarily because, from puberty to menopause, few women ask for that all important first date or make the first moves, but leave this work to men, creating a condition Roy Schenk appropriately likens to a sexual desert. (The Other Side of the Coin, Roy U. Schenk, pp 72 - 74) Thirsting for love in an apparently arid land, men shower women with so many offers that, for them, it seems more like a "rainforest." (The Other Side of the Coin, Roy U. Schenk, pp 74)
Thus, most men feel themselves victims of a scarcity created by most women's refusal to share the burden of initiating relationships: most women reject most men's sexual initiatives, and give their sexual attention with apparent reluctance. This makes most men feel sexually deprived, causing them to pester women (particularly women in their child-bearing years) for sexual attention. Women consequently feel as though they are in a sexual rainforest being drenched by far too many sexual opportunities.
For this reason, sexual harassment of women is reasonably defined in the context of abundant sexual opportunity. But does it make sense to define how men experience sexual harassment only in the context of abundant sexual opportunity? Is it fair to deny to men the right to define sexual harassment for themselves? To impose a female definition on them?
Most men don't understand what it feels like to have too much sexual opportunity. We may "get" women's view of sexual harassment in an intellectual sense, but this isn't the same as experiencing the frustration that comes from being hounded with too many offers. Trying to communicate this sense of overabundance to men can be like trying to explain what it's like to have too much food to a starving waif -- he just wouldn't "get it."
But most women "just don't get it," either. Until they reach their 50's, that is, when, as mystery novel writer Carolyn Heilbrun notes, "appearance no longer plays a critical role in their lives, when looks count for little" and "women become (sexually) 'invisible'." (Minneapolis Star Tribune, Don Oldenburg, November 3, 1991, p 11E) Until then, however, the closest most women may come to understanding the male experience is in their relationship with food.
If Ireland has a drinking problem, a female Irish friend once told me, then America has an eating disorder. From anorexia nervosa to ice cream binges, millions of Americans obsess about food. Women are particularly susceptible to this as pop-culture teaches them that, to be attractive, they must be emaciated. Thus, millions of women know what it's like to chronically diet.
The agony of seeing mouth-watering delights advertised on TV, and dreams of cake, ice cream, steaks thick and juicy, with potatoes smothered in savory gravy, torture them. It's so easy to tease these tormented souls -- just sit down next to them at lunch time and tantalize them with sandwiches and cookies while they try to make do with cottage cheese, rabbit food, and diet drinks. Watch as their eyes grow round while you munch your burger and fries with content. Or, if you really want to make them miserable, sop one of those fries in ketchup and dangle it just out of reach. So easy to tease, so much fun to harass.
To harass men, women do much the same. In the same way millions of women obsess about food, most men obsess about sex because most women pretend it's a scarce commodity for which men must beg and pay. So men obsess about it, and when women catch the "wrong" men staring at every hint of cleavage or flash of thigh, many act surprised and scandalized.
Some might protest this is like comparing apples to oranges, likening the objectification of a thing (food) to the objectification of a person. But this is not the case, because whether it's a skinny friend teasing you with food, or an attractive woman tantilizing a man with cosmetics, clothing and perfume, the dynamic is the same because it's not the objects, but the people behind the objects, that are important.
In our culture, therefore, most men suffer from a perceived scarcity of sex, and every day millions of women rely on this to sexually harass men. But men don't feel harassed, pop-feminists protest! And they've got the surveys to prove it. The truth, however, is that most men probably do feel harassed and just don't know it. Yet.
Would a dieting woman "feel" harassed if her break-time companion with the flat tummy and thin thighs ate a piece of pie in front of her during lunch? Sitting there, cutting off a bite sized chunk as they talk, the tantalizing morsel riding the fork up to her mouth, mouth widening to take it in, tongue, wet and glistening, extending to catch the richness of its flavor, then stopping, the sweet delight hovering hesitantly as she pauses to say something, punctuating her words by jabbing the air with her pie-laden fork. Would our hungry heroine say she felt harassed? Probably not, because we usually don't think of harassment in those terms. Does that mean she does not feel harassed, or that she does feel harassed and just doesn't know what to call it?
What if she is held captive in some sadist's dungeon and there made to suffer hunger and privation, a few meager morsels of rabbit food her only sustenance as her captor comes and sits outside her cage to enjoy tea and biscuits while she looks on with hungry eyes. Would that be harassment? Most of us would probably skip past harassment to call it torture. (Do men feel sexually harassed, or sexually tortured?) If so, then what difference that in the cafeteria, her cage is not made of metal, but of our social norms and expectations?
Similarly, women torture men. The bars on men's cages are wrought, not of iron, but of the attitudes that tell us women need sex less, that their sexuality is more valuable than ours, and that they are morally superior to men.
Thus does our culture constrain men, sometimes with prison walls of concrete and steel, but more often with women's expectation that men must earn sexual equality with them. Under such conditions, no matter how comfortable or pleasant the dungeon may be, most men in our society are like starving women. Women who go to work wearing sensuality-accentuating clothing, makeup or perfume, or who engage in behaviors that have the same effect, are guilty of sexually torturing their male co-workers if those men feel sexually aroused and, therefore, more sexually needy and less able to concentrate on their work. Is this somehow less a crime because the victims are not women, but men?
One of the reasons few men report themselves as victims of harassment is because most men don't realize they're being harassed. Another reason, and one most of us (men included) reject out of hand, is that most men fear being "'scared of girls" even more than they fear women.
`Scared of Girls
Commonly, women assert men cannot understand the fear women feel: "When was the last time you were afraid to go out to your car in a parking lot at night?" The common assumption is that there are millions of rapacious men lurking about darkened parking lots waiting for some hapless female to fall prey to their evil intentions.
Statistically, of course, most victims of all forms of violence are men. Hence, men have far more to fear than women. All of this aside, however, most men know what it's like to fear the opposite sex because, as boys, most of us were "scared of girls." A fear few men ever truly outgrow, a fear women just don't get.
What else most women don't get is that men are now increasingly afraid to treat their female co-workers as equals. With the tremendous increase in awareness of sexual harassment, men now realize pop-feminists, like their Victorian moralist ascendants, are demanding we put women back up on the pedestal of special protection, and that this places the men who were decent enough to hear the feminist message and take their demands for female equality to heart most at risk.
"Heroic" rapists (an unprincipled user of women common in "bodice-ripping" romance novels), jerks who harass, pester, date rape or hound women, may be least at risk because, as Sheila Isenberg observes in Women Who Love Men Who Kill, from soap operas to romance novels to the prison cells, women by the millions adore and fantasize about them. But nurturing men are vulnerable not only because they treat women as equals, but because most women don't even think of or treat them like real men.
A "nice guy" is to women what the virginal whore is to men -- fantasy. Hence, nice guys have good reason to fear women, and to varying degrees, most men do. Unfortunately, from grade school on, most men have been indoctrinated to deny this fear.
Ironically, many women feel men's fear is creating a new hostile environment for women because, despite that women's magazines continue to urge women to seek romantic fulfillment in the office, more and more men are holding back, refusing to expose themselves to the danger of being accused of sexual harassment. Additionally, even as women attack men for being afraid, male victimization is not taken seriously: Officials at the Boeing Company, for example, have dismissed charges of sexual harassment made by male employees, shrugging them off as spurious retaliation against the charges of sexual harassment made by female employees. Unfortunately, this is consistent with how the courts and juries treat men's complaints, too, as Daniel Patterson discovered when he tried to sue the city of Seattle for hostile environment sexual harassment.
Patterson v. City of Seattle: The Denial of Male Victimization
In 1989, Daniel Patterson filed a claim of hostile environment sexual harassment against the city of Seattle. In his case, heard before King County Superior Court Judge Marsha Pechman, he alleged that, during a 38 month period extending from 1986 to 1989, his female supervisor showed him "private parts of her body and unlawful displays of sexual material." (The Seattle Times, The law on sexual harassment, October 11, 1991, p C1) Patterson also testified that she put her hand down the back of his shirt, told him he looked good in tight jeans, and commented on being able to tell the color of his underwear through his light-colored pants. (The Seattle Times, The law on sexual harassment, October 17, 1991, p B1) She denied it all, admitting only that she "told off-color jokes in the office," and that "Patterson and others did not mind." (The Seattle Times, The law on sexual harassment, October 31, 1991, p G1) In November, 1991, the jury decided Patterson was not sexually harassed.
What kind of proof would Patterson have needed to substantiate his allegations? Very little, according to the EEOC: "In 1988, the U.S. Equal Employment Opportunity Commission issued guidelines saying someone could prove sexual harassment 'based solely on the credibility of the victim's allegation.'" (The Seattle Times, The law on sexual harassment, October 17, 1991, p B2)
In Anita Hill's case, her credibility was questioned because she had not complained at the time her alleged harassment took place, and because she had kept no detailed record of the incidents. Ironically, Patterson was criticized for doing what Hill failed to do: record each incident, and complain at the time it happened.
After the trial, Patterson addressed a forum on sexual harassment, where he explained how he had complained about the incidents when they happened, yet this, and the fact he had kept written records about them, actually weakened his case. The jury didn't understand how a man could feel sexually harassed by a woman. According to Patterson, they felt that had he actually felt victimized, he would have remained silent about it, as Anita Hill did.
In our culture, victimization is uniquely associated with women. Women are victims, men are villains: "By anatomical fiat -- the inescapable construction of their genital organs -- the human male was a natural predator and the human female served as his natural prey." (Against Our Will, Susan Brownmiller, p 6) By this logic, Patterson could not have been a victim because he is a man. More to the point, he is a white man, many believe it's a (white) "man's world" and men are "natural predators," so he could not have been a victim. This is one explanation for why he lost his case.
But many might argue his case truly lacked merit, that he would have lost even had he been a woman and his supervisor a man. Or that even if he was truly harassed, male victimization is rare and one instance cannot be considered the tip of the proverbial ice berg. But every man knows how casually contemptuous of male-victimization our culture has become.
Rod Van Mechelen