Female Attorneys + Gender Harassment => Negative Personal and Professional Outcomes

A team of psychological science researchers studied gender harassment and published the results of surveys involving women working in two male-dominated domains:  the US military and federal legal practice.  This post highlights the key points learned about sex-based harassment at work from the female attorney study.

Using survey data, the investigators showed two findings with very important legal implications:  (1) most sexual harassment in traditionally male work domains entails gender harassment in the absence of sexual advances; and (2) such working women experience negative personal and professional and professional outcomes.  Gender harassment is the modal form of sex-based harassment faced by women who work in male-dominated work domains.  Gender harassment alters the terms of employment for the targeted victims.  Gender harassment, this research study also shows, correlates with a variety of negative personal and professional outcomes.

This post discusses research which quite reasonably can be taken as having dramatic implications for the legal profession, its members, the workplace, and organizational leaders.  “This article draws attention to the incidence and correlates of gender harassment in the workplace.”  Quite simply put – this very serious business …. about life, health, and career that the players cannot ignore.  For some unfortunate female attorneys, their workplace can become the “hall of injustice”.  This post kindly invites your attention for a few minutes, and will explain how and why.

What is gender harassment?

Citing to one of the author’s prior studies, legal decisions, and scholarly commentary, the authors identify, describe, and then distinguish three related categories of sex-based harassment. The investigators describe gender harassment as “a broad range of verbal and nonverbal behaviors not aimed at sexual cooperation but that convey insulting, hostile, and degrading attitudes about women.” These behaviors communicate hostility.

Unlike the other two categories of sexual harassment, “unwanted sexual attention” and “sexual coercion”, with gender harassment there is no sexual interest and no sexual advance.  Instead, the degrading terms, anti-female jokes, or telling sexually graphic jokes, among other behaviors, aim to insult and reject women, not to pull the woman into a sexual relationship.  Gender harassment is, according to the investigators, aimed to insult and reject women, like a “put down”.  Gender harassment differs from a “come on”.  A “come on” is a form of sexual harassment related to sexual interest and seeks a sexual relationship.

Why care about gender harassment?

The authors discuss legal perspectives and psychological research explain why gender harassment constitutes a harmful and objectionable condition of employment which has little to do with sexuality, but everything, they argue, to with gender.

Legal Perspectives.  Federal law, Title VII of the Civil Rights Act of 1964, “prohibits employers from discriminating against any individual with regard to ….employment, because of such individual’s …sex”.  The authors develop this point through citation to and discussion about various lower federal court and U.S. Supreme Court cases, which recognize sexual harassment as Title VII violations.  The recognition of gender harassment as a violation of federal law began with Barnes v. Costle, 561 F.2d 1983 (D.C.Cir. 1977).  The Supreme Court established that hostile work environment harassment constituted unlawful sexual harassment under Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).  The Court explained the contours of an actionable claim in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) in terms of an subjective test and an objective test, the latter being looked at through all the circumstances.  The latest decision which the authors discuss in the legal context is the Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) decision.  In that case, the Supreme Court clearly stated that “But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”

The legal background section also mentions Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999).  In that decision, not explicitly quoted by the investigators’ discussion, the court stated:

“Because it appears this court has never explicitly held that non-sexual conduct can constitute harassment “based on sex,” we now take this opportunity to join our sister circuits and make clear that the conduct underlying a sexual harassment claim need not be overtly sexual in nature. Any unequal treatment of an employee that would not occur but for the employee’s gender may, if sufficiently severe or pervasive under the Harris standard, constitute a hostile environment in violation of Title VII.”  Williams, 187 F.3d at 565 (emphasis added).

The authors also cite and discuss scholarly legal commentary in their legal perspectives.  This discussion centers on the concept that gender harassment involving no sexual context routinely gets neglected by the law.  From their synthesis of the commentaries, they claim “Some courts routinely either dismiss hostile environment cases that do not involve sexual conduct, or they “disaggregate” sexual from nonsexual conduct and then deem the latter to be irrelevant to a hostile environment claim [citing three commentaries].”  The investigators’ commentary seems to imply that by either implicitly or explicitly requiring that the offensive behavior “must reference sexuality to constitute unlawful sex-based harassment, the federal courts perhaps have not “made sense” of harassment based on sex and gender.

Psychological Research on Sexual Harassment.  The study authors note research studies which cover a period beginning more than 20 years ago, and report that research on lay perceptions of sexual harassment indicates that gender harassment gets rated as being less severe and less offensive than sexual harassment.  The results have been no different for surveys of actual harassment experience of working adults in federal employment.  The authors note a result similar to lay public surveys.  Because the federal employment surveys have concentrated on sexually advancing behaviors, the study authors note “they neglected gender harassment”.

The authors note that when specifically requested, survey participants respond and researchers using a widely used and validated measure of sexual harassment experiences, the Sexual Experiences Questionnaire (SEQ), have found gender harassment to be the most commonly reported subtype of sexual harassment experiences. But, little research has focused on experiences of gender harassment in isolation from other behaviors.  This type of survey research focus, they claim, “obscures the unique experience and impact of gender harassment”.  A final aspect of the “neglect” issue concept developed in the study report relates to experimental research.  “This work has also been characterized by an emphasis on sexual attention.”  Examples given about the “sexual attention” experimental research focus included sexual touching or sexually suggestive questions.

Why did the investigators study gender harassment?

Important reasons caused the psychological scientists to conduct the research studies on survey responses by female military personnel and female attorneys in a large federal judicial circuit.

First, the investigators’ review of legal cases and legal commentary as well as past survey and experimental research of lay persons and federal employees showed that the law and psychological science had routinely neglected and paid virtually no attention to gender harassment involving no sexual advances.  Gender harassment, which has no explicit or sexually predatory component, has possibly seemed less worthy of scientific or legal scrutiny.  But, a concept dubbed “everyday sexism” exists in the research literature.  This is about “regular sexist interactions”, which includes anti-female jokes or comments about gender stereotypes.  Past research shows those types of encounters were associated with anger, anxiety, and depression and may trigger feelings of stereotype threat.  The research team proposed that like everyday sexism, gender harassment “may be used to cue women that they are inadequate, out of place, and unable to perform at the level of men.”

Past research has linked sexual harassment with a wide range of victim outcomes.  Sexual harassment is associated with decreased satisfaction with work and professional relationships, loss of productivity, and increased turnover intentions.  Beyond work, sexual harassment victims report lower psychological well-being, more physical health problems, and even symptoms of traumatic stress.  The past research, however, has not, according to the investigators, differentiated among the sub-types of sex-harassing behavior.  The research team concluded that “it is impossible to know from this work” whether gender harassment, by itself, has the same adverse victim outcomes.

A final reason that can be gleaned from the research report, in line with fact that research has neglected the topic, is that gender harassment “has almost certainly gone unreported in organizations”.  Related to the idea that gender harassment has apparently been deemed less worthy of legal scrutiny is that intervention by organizational authorities is less likely to occur.  In short, gender harassment has seemed to be inconsequential or less important than unwanted sexual attention in the workplace.  The authors state “This makes it all the more imperative that social science bring gender harassment to the fore, so that it may be recognized as a legitimate and serious form of sex-based discrimination in the workplace.”

Who were the participants and what questions did the investigators ask?

The research team used large scale survey research to test what they characterized as “compelling theories about the importance of gender harassment” developed by legal scholars.  Women working in two male-dominated domains, the U.S. Military and federal legal practice, provided the survey data.  The researchers targeted these groups because they work in jobs that are “highly nontraditional for their gender”.  According to recent research, women in such work domains are “particularly vulnerable to being scorned and rejected (e.g., gender harassed) by colleagues who value rigid and clear distinctions between the sexes.”

The investigators formulated hypotheses and those are reformulated here as the following questions:

1. Is gender harassment, without unwanted sexual attention or coercion, the most common form of sex-based harassment that women experience? [Answer:  Yes]
2. Will women report negative professional and personal outcomes even when they “only” experience gender harassment? [Answer:  Yes]

What measures did the researchers use to answer their questions?

The investigators assessed sex-based harassment by asking questions from the Sexual Experiences Questionnaire.  The female attorneys responded to questions about gender harassment [offensive remarks or jokes about women; publicly addressed in unprofessional terms, like “honey” or “dear”], unwanted sexual attention [attempts to establish a romantic or sexual relationship despite discouragement], and sexual coercion [implied more favorable treatment if sexually cooperative]over the past five years from judges, attorneys, trustees, marshals, court security officers, and court personnel.

The attorney study also measured job-related outcomes.  Questions measured intentions to change careers [think about leaving federal litigation], job stress [work in federal court more stressful than attorney liked], and professional relationship satisfaction [satisfied with professional relationships with other attorneys].

Results and Discussion

In summary, the researchers studied gender harassment in the absence of unwanted sexual attention or sexual coercion, analyzed the results, and found the following for women in the legal employment context:

• Over 90% of the female attorneys who reported harassment experiences had little or no sexual advancing harassment;
• The analysis of the harassment experiences reported revealed significant effects on job stress in that compared to their non-harassed counterparts, gender-harassed women reported significantly higher levels of job stress;
• The gender-harassed women “described less satisfaction with their relationships with federal judges, other attorneys in the federal court, and court personnel”;
• Gender-harassed women attorneys “fared just as poorly as those who had experienced sexual advance harassment”.

The researchers considered those results and regarding the female federal litigation survey participants made the following key findings:

• The empirical results support the legal theory that “much of the time, harassment assumes a form that has little or nothing to do with sexuality but everything to do with gender”;
• The gender harassment conduct does not attempt to draw women into a sexual relationship, but “rejects women and attempts to drive them out of jobs where they are seen to have no place”;
• “just” gender harassment is associated with multiple negative personal and professional outcomes, including lower satisfaction with professional relationships; higher job stress;
• the multiple negative personal and professional outcomes were above and beyond the effects of race and job tenure.

In the female military context, from their results, the investigators made key findings that those gender-harassed women:

• reported lower psychological well-being, job performance, job commitment, and satisfaction with their employment and health;
• described more thoughts and intentions of leaving their jobs

The authors claim “This research has important legal implications.”  It is hard to disagree with that general proposition.  Reports by the study survey participants of gender discrimination by judges, marshals, other counsel, and court personnel against female attorneys in federal litigation practice constitutes, at a minimum, a highly important issue with “important legal implications”.  The authors, citing to scholarly legal commentary, have also amply supported their claim the courts have been overly restrictive of the reach of the law and “further revision is in order, to prohibit not just sexually predatory conduct, but also behavior that creates a hostile work environment for members of one sex but contains no sexual advance—that is gender harassment.”

The investigators, consistent with sound practice, acknowledge the limitations of their study.  The results, based on cross-sectional correlational data, do not prove any causal or temporal connection.  The “truths” found by the researchers relates to the “average”.  Gender harassment will not necessarily correlate with negative outcomes for every victim.  Each case depends upon its own facts.  A case-by-case determination determines “truth” for any individual woman.  Gender harassment, not “just” gender harassment, is no trivial matter.  Instead, the research shows that harassment exclusively consisting of gender hostility has adverse work-related and personal psychological well-being outcomes.

Gender harassment, whether inside the courthouse, or outside, harms its victims personally and professionally and violates the law.  The psychological science researchers have provided empirical proof about the connection between gender harassment behavior and personal and professional harm suffered by females in male-dominated workplaces, including federal courthouses and the military.  The courts must apply this learning, consider the scholarly commentary and make the necessary legal connections, and recognize gender harassment as a legitimate and serious form of sex-based discrimination.  Its victims need remedies for their personal and professional harms due to sex-based harassment.

Closing Comments & Future Postings

It should be considered a very sad day for legal professionals of all walks when 491 female attorneys out of 1,425 fill out a survey form which lists “unwanted sexual or sexist behaviors over the past 5 years from judges, attorneys, trustees, marshals, court security officers, and court personnel” and report at least one such experience.  One of the hallmarks of the legal profession is self-regulation.  The research reported on in this post strongly suggests that development opportunities exist.  Action directed toward positive change should occur.  The circumstances warrant immediate attention.

The psychological science researchers credit legal scholars’ commentary as providing inspiration for the current research efforts.  They wisely note that legal understanding changes as courts interpret and refine precedent.  The last thought expressed by the investigators is “We hope that, in turn, our results can inform further evolution in legal thinking about harassment based on sex and gender.”

I have over 20 years of experience as an attorney.  While I do not currently practice employment law, I did in the past.  In fact, in the early 1990s another attorney and I tried one of the first Title VII cases to a jury in Kansas City, Missouri federal court.  The case involved circumstances arising in a law enforcement environment and had claims for hostile environment, sex-based discrimination, and sexual harassment.  I also have an MS degree in organizational development psychology[OD] and am an OD consultant.  I commend to you the efforts and work of these researchers.  The legal cases cited and legal commentary noted support the arguments made.  A sad fact is that gender harassment of women who work in traditional, male-dominated professions, like the military or legal profession, puts those targets at great risk of suffering negative personal and professional outcomes.  But, there is a belief that such claims are in effect trivial.

OD consultants use models to diagnose organizational issues and propose change interventions.  In future posts, Psycholawlogy will identify, explain, and discuss a four-dimensional approach to understanding and addressing workplace discrimination.  That four dimensional approach is described in terms of four frames.  The frames are likened to certain images.  Organizations are seen as machines, families, jungles, and theatre.  Each frame captures part of organizational reality, and suggests a strategy for diagnosing and improving an organization.   Change occurs through reframing.  Reframing is a deliberate process.  That process is a journey.  The legal profession, the research shows, has not sputtered.  It has delayed its departure.  It must begin the journey now.  The researchers have shown that gender harassment puts the health and professional well-being of our female members at serious risk and remedies remain uncertain and elusive.

Next case. . . .

Source:  Leskinen EA, Cortina LM, & Kabat DB (2011). Gender harassment: broadening our understanding of sex-based harassment at work. Law and human behavior, 35 (1), 25-39 PMID: 20661766

To obtain a copy of the article featured in this Psycholawlogy post, and read other scholarly articles about this and related topics, access the web site for the Gender and Respect in Organizations lab – University of Michigan.  Lilia Cortina, Ph.D., Principal Researcher.

Thank you.  I appreciate your visit to Psycholawlogy, www.psycholawlogy.com.  Thank you very much.  If you have any questions or comments about this blog or posting or the topic, please do let me know.  Also, if you have any thoughts or ideas for future postings, do not be shy about that either.  Please contact me through my web site, www.adlitemsolutions.com, or directly via email to dan@adlitemsolutions.com.  In addition to exploring the researchers’ web page noted above, please contact me if you want a copy of any of the articles or cases noted in this posting or referenced in the article.  Thank you again.