Where is the common knowledge? Empirical support for requiring expert testimony in sexual harassment trials.

• Author: Shestowsky, Donna

The use of expert testimony in sexual harassment trials is a contentious issue in the federal courts. Federal court judges frequently disallow expert testimony because they assume that what constitutes sexual harassment is "common knowledge" and therefore expert opinion on the matter would not be helpful to the trier of fact. Donna Shestowsky argues that empirical evidence finding that men and women have vastly different perceptions of sexual harassment indicates that a common knowledge base for determining reasonable behavior does not exist. She argues that expert testimony is so useful for correcting the substantial misconceptions and biases of the jurors and judges who decide sexual harassment cases that this testimony should be regarded as necessary for the just adjudication of sexual harassment claims. This note describes three common topics of expert testimony in sexual harassment cases--sexual stereotyping, reasonableness, and reluctant reporting. Cases in which expert testimony was admitted are contrasted with those in which it was excluded, and experimental and survey research pertaining to each testimony topic is used to evaluate the utility of expert testimony from empirical and policy perspectives. The note concludes with guidelines for policy and future research.

In trying to establish what behaviors constitute sexual harassment, parties often attempt to introduce the testimony of expert witnesses. Such experts educate triers of fact as to reasonable responses to harassment, and ultimately, as to whether the alleged misconduct at issue constitutes harassment.(1) This use of expert testimony raises important issues about whether a jury or a judge can make determinations about sexual harassment without the assistance of experts.(2) Some courts defer to expert advice, whereas others reject the use of experts on the ground that lay opinions(3) about sexual harassment are sufficient to reach a proper judicial result.(4) Indeed, federal court judges frequently express a reluctance to allow expert testimony because they assumes(5) that what constitutes sexual harassment is common knowledge.(6)

But is there truly a body of knowledge that can be labeled "common knowledge" about sexual harassment? If so, does this "common knowledge" reflect the reality of sexual harassment? This note evaluates empirical evidence about how lay people do in fact make judgments about sexual harassment and makes the following argument: Expert testimony is so useful for correcting the substantial misperceptions and biases of the jurors or judges--the lay people--who decide sexual harassment cases that this testimony should be regarded as necessary for the just adjudication of sexual harassment claims. This note argues, moreover, that empirical research finding that men and women have vastly different perceptions of sexual harassment indicates that no common knowledge base for determining reasonable behavior exists.(7)

Part I of this note reviews the legal standards pertaining to sexual harassment. Part II explains the relevant rules governing the admissibility of expert testimony. Part III describes three common topics of expert testimony in sexual harassment cases--sexual stereotyping, reasonableness, and reluctant reporting. Cases in which expert testimony was admitted are contrasted with those in which it was excluded, and experimental and survey research pertaining to each topic of testimony is used to evaluate the utility of expert testimony from empirical and policy perspectives. The note concludes in Part IV with proposed guidelines for policy and future research.

1. REVIEW OF LEGAL STANDARDS

   Although Title VII of the 1964 Civil Rights Act(8) has precluded discrimination based on sex since its passage, it was not until 1986 that the U.S. Supreme Court, in Meritor Savings Bank, FSB. v. Vinson,(9) held that sexual harassment was actionable as a form of sex discrimination under Title VII.(10) The Supreme Court and the Equal Employment Opportunity Commission (EEOC) recognize two types of sexual harassment claims arising under Title VII. One type is the economic "quid pro quo" sexual harassment. Quid pro quo sexual harassment is defined as "[u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature"(11) that are "directly linked to the grant or denial of an economic quid pro quo."(12) This type of sexual harassment often "occurs when a supervisor's granting of a tangible job benefit is conditioned, either explicitly or implicitly, upon the receipt of sexual favors from a subordinate" and requires economic harm.(13) Another type is "hostile environment" sexual harassment, which occurs when the harassment "has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment."(14) The primary standard for determining the existence of both types of sexual harassment is "unwelcomeness."(15) That is, for the plaintiff to prevail in a sexual harassment claim, the trier of fact must determine that the plaintiff did not welcome the defendant's alleged sexualized conduct.(16)

   With regard to matters of proof, quid pro quo harassment cases are relatively straightforward. The complainant must prove that there was a demand or request for sexual favors in exchange for a job benefit.(17) Hostile environment harassment claims raise more difficult questions of proof, such as what constitutes a "hostile environment" and what qualifies as harassing behavior.

   Another element of proving sexual harassment is the "reasonableness" requirement. Most courts use the "reasonable person" standard to determine whether sexual harassment exists.(18) That is, for quid pro quo cases, the trier of fact must determine whether a reasonable person would have believed that she was the subject of quid pro quo harassment; in hostile environment cases, the court must determine whether the behavior at issue would create a hostile work environment for the "reasonable person."(19) Other courts use either the "reasonable victim"(20) or the "reasonable person from the plaintiffs perspective"(21) standard. Still others follow the "reasonable woman" standard.(22) Regardless of the standard, exactly what constitutes "reasonable" is a matter to be determined by the trier of fact. Thus, the most obvious question that arises from the "reasonable woman," "reasonable victim," and "reasonable person from the (female) plaintiff's perspective" standards is how male factfinders, in the absence of expert testimony, can know what a reasonable woman would regard as harassment.

2. THE ADMISSIBILITY OF EXPERT TESTIMONY

   The Federal Rules of Evidence are quite liberal regarding the admissibility of expert testimony. Rule 702 states that an expert may testify if scientific, technical, or other specialized knowledge possessed by the expert will assist the decisionmaker to understand the evidence or to determine a fact at issue.(23) Rule 702 restricts expert testimony to cases in which the court finds that the testimony will assist the trier of fact. The notes accompanying Rule 702 explain that:

   [t]here is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.(24) There is no established procedure for determining whether a proposed expert opinion might assist the jury. Judges are not required to investigate the general extent of common knowledge in the area of dispute nor are they required to specify in their opinions how much "common understanding" among jurors is needed before expert testimony is properly excluded--they simply exercise their discretion to determine whether expert testimony would be helpful.(25) If the judge believes that the issues are not sufficiently important or complex, he or she may simply refuse to admit expert testimony on grounds of unhelpfulness.(26)

   Rule 704 also applies to sexual harassment testimony.(27) Under Rule 704, expert opinion evidence is not objectionable even if it embraces the ultimate issue to be decided by the trier of fact, with the exception of evidence pertaining to the mental state or condition of the defendant in a criminal case? Because sexual harassment is a civil rather than a criminal offense, experts may address the ultimate issue in sexual harassment trials. That is, they may state that the plaintiff acted as the reasonable person, woman or victim would, and they may also offer the opinion that the plaintiff was in fact harassed.(29) Rather than being regarded as a usurpation of the jury's province, this trend of allowing experts to address the ultimate issue is generally considered helpful in finding the truth.(30) The notes accompanying Rule 704 refer to the requirements that ultimate issue testimony must meet under Federal Rule of Evidence 702.(31) These notes point to Rules 701,(32) 702,(33) and 403(34) as "provisions [which] afford ample assurances against the admission of opinions which would merely tell the jury what result to reach ...."(36)

   The rule under Daubert v. Merrell Dow Pharmaceuticals, Inc.,(36) may also govern the admissibility of expert testimony in sexual harassment cases. In Daubert, the Supreme Court determined the proper standards to be applied with regard to expert witnesses who discuss "scientific" evidence.(37) The Court held that the Federal Rules of Evidence require "the trial judge ... [to] ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable."(38) The Court explained that expert testimony will be admissible under Rule 702 based on a more flexible, two-step procedure: first, a decision about whether the evidence is reliable, and second...