Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 4. Negligence Standard
“[w]hether the workplace is objectively hostile must be determined from the perspective of a
reasonable person with the same fundamental characteristics,” citing to its pre-Harris decision in
Ellison. See Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). Is gender one of the
Fuller decision’s “fundamental characteristics”? If so, did the Ninth Circuit smuggle gender back
in, despite the apparent rejection of gender by the Supreme Court in Harris? More recently, the
Ninth Circuit has been explicit about its view that the sexual harassment question requires an
inquiry into the view of the “reasonable woman.” Brooks v. City of San Mateo, 229 F.3d 917, 922
(9th Cir. 2000); see also Hamilton v. RDI/Caesars Riverboat Casino, LLC, 179 F. Supp. 2d 929
(S.D. Ind. 2002).
The Second Circuit, by contrast, has rejected the inclusion of gender in the analysis of
reasonableness. In the 1999 decision Richardson v. New York State Department of Correctional
Services, the court adopted a “reasonable person” standard for Title VII sexual harassment cases
and explained:
[W]e reject the view of those courts that look to the perspective of the particular
ethnic or gender group, e.g., a “reasonable African-American” or a “reasonable Jew.”
While we recognize that there is dicta in this circuit supporting such an approach,
we believe that examining hostile environment claims from the perspective of a
“reasonable person who is the target of racially or ethnically oriented remarks” is
the proper approach. First, Title VII seeks to protect those that are the targets of
such conduct, and it is their perspective, not that of bystanders or the speaker, that
is pertinent. Second, this standard makes clear that triers of fact are not to determine
whether some ethnic or gender groups are more thin-skinned than others. Such an
inquiry would at best concern largely indeterminate and fluid matters varying
according to location, time, and current events. It might also lead to evidence,
argument, and deliberations regarding supposed group characteristics and to
undesirable, even ugly, jury and courtroom scenes.
180 F.3d 426, 436 n.3 (2d Cir. 1999), abrogated on other grounds by Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Which federal circuit do you think has the better of the argument, the Second or the
Ninth? Does either circuit court’s argument capture the correct perspective? As critical legal
theorist Kimberlé Crenshaw famously observed in her landmark 1991 article introducing the
concept of “intersectionality,” individuals are not just reasonable people with a gender identity;
they also have racial identities and class identities. Kimberlé Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics, and Violence against Women of Color, 43 STAN. L. REV. 1241
(1991). People also have temperaments and personalities, likes and dislikes, and more. Is there
any hope of subcategorizing the reasonable person in light of the kaleidoscope of identity-making
characteristics with which people are endowed? Perhaps the law should pay attention to some
such characteristics but not others? Consider Susan Cain’s best-selling book Quiet, which argues
that society wrongly prefers extroverts to introverts. Is there a reason to be more concerned with
gendered injustice than introversion injustice?
As you consider the merits of a “reasonable woman” standard for tort law, note that
allegedly harassing conduct in the workplace is not the only context in which group characteristics
may correspond with significant differences in perception. A well-known phenomenon among
scholars of risk cognition is the so-called white male effect: researchers have found that when
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