Casualty insurance.

• Author: Hodges, George S.
• Position: The latest developments of interest to defense counsel

THERE has been a steady rise in the number of sexual harassment cases since the passage of the Civil Rights Act of 1991. Constantly evolving social customs and changing perceptions of what is acceptable behavior in the work place have profoundly impacted both the quality and quantity of sexual harassment litigation.

Since the analysis of sexual harassment claims necessarily involves an inquiry into claimants' state of mind, the use of expert testimony may provide valuable insight into one's perceptions and reactions to an objectionable environment or to specific conduct. With the increasing focus on the manner in which and the sufficiency with which claims are handled by the employer, expert testimony likely will become more common in assisting a trier of fact to evaluate policy and procedure.

What's the standard

Courts are divided on the standard by which to measure sexual harassment claims. Some jurisdictions view cases from the perspective of a "reasonable woman."(1) Others continue to apply the "reasonable person" test.(2)

Rule 702 of the Federal Rules of Evidence provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

For those jurisdictions that employ the "reasonable woman" approach, expert testimony is particularly important. Because a jury will be composed of both men and women, expert testimony on conduct in the work place, gender-based perceptions and responses are critically important in order to weigh the factual evidence fairly and accurately. However, regardless of which standard is applied, the use of expert testimony on the sufficiency of policy and procedure with respect to sexual harassment complaints will provide the trier of fact with the appropriate tools with which to determine the validity of a claim.

There is a surprising scarcity of cases that speak directly to the question of the use of experts in sexual harassment cases. The most frequently referenced opinion, Robinson v. Jacksonville Shipyards Inc.,(3) extensively discusses the testimony of several experts introduced by both the plaintiff and the defendant. In a footnote, it is mentioned that one of the same experts was not permitted to testify at a previous sexual harassment trial in another jurisdiction.(4) The court distinguished the...