As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, every organisation with more than 10 employees is mandated to constitute an Internal Committee (IC) to investigate complaints of workplace sexual harassment.
Vested with the powers of a civil court, these quasi-judicial bodies serve an important function in providing redressal to survivors of sexual harassment. However, in the absence of robust training, Internal Committees can reinforce systemic biases that penalise survivors.
One of the parameters often used in adjudicating sexual harassment is known as the “reasonable woman standard”. However, before committees apply the reasonable woman standard, it is important that they fully grasp the concept, its limitations and how it can be adequately applied.
What is the “reasonable woman standard”?
The reasonable woman standard was first developed in American federal courts in response to what the courts perceived as a gender-based difference in acceptable workplace conduct.
Typically, courts employ the use of a ‘reasonable person standard’ to determine if certain conduct is generally acceptable or not. A reasonable person is a “hypothetical person in society who exercises average care, skill, and judgment in conduct”. However, the court reasoned that this standard was male-biased and did not consider the perspective of women. In Kerry Ellison V Nicholas Brady, the court stated, “We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person standard tends to be male-biased and tends to systematically ignore the experiences of women. The reasonable woman standard does not establish a higher level of protection for women than men.”
The standard was introduced as a mechanism to challenge the prevalence of offensive conduct solely because it received majoritarian support. The standard advocates for a shift in the lens that is used to determine what is acceptable workplace conduct, and to specifically center the perspectives of those that have been historically excluded from workplaces.
In the Ellison judgement, it was reasoned that “a male Supervisor might believe that it is legitimate for him to tell a female subordinate that she has a 'great figure' or 'nice legs.' The female subordinate, however, may find such comments offensive." It is now generally known that such comments are unacceptable, but the reasoning used in this judgement can be extended to suggest that we must consider offence from the perspective of the party that claims offence, especially when such party occupies an identity that is marginalised.
In the Indian context, in Dr. Punita K Sodhi v Union of India & Ors. W.P., the Delhi High Court quoted the Ellison judgement and the reasonable woman standard to state that, "A complete understanding of the complainant’s view requires... an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women... Men tend to view some forms of sexual harassment as harmless social interactions to which only overly-sensitive women would object. The characteristically male view depicts sexual harassment as comparatively harmless amusement.... Men, who are rarely victims of sexual assault, may view sexual conduct in a vacuum without a full appreciation of the social setting or the underlying threat of violence that a woman may perceive."
With workplaces becoming more diverse, such a standard can be a powerful tool to ensure that our standards of measuring objectionable behaviour are inclusive.
Criticism
However, the reasonable woman standard has also been criticised for attempting to reduce sexual harassment to merely a matter of differing perspectives.
Critics of the standard argue that it dilutes the objectivity of sexual harassment, and instead, relegates sexual harassment to a difference between the sensitivities of men and women. They also claim that it reinforces discrimination by excluding women’s perspective from the category of “person”.
For instance, Kathleen Kenealy argued that, “at worst the reasonable woman standard could be used in other contexts as a rationale to support the idea that women need special treatment.”
Another common criticism of the standard is that it erases the complexities of women’s identities and does not have an intersectional approach; it does not take into account the way other aspects such as race, class, caste etc. may influence notions of offense and acceptability.
How to use the standard
While these criticisms are fair, we can address it proactively. Tanya Hunter provides a framework for this. She suggests, “perhaps rather than adopting a new standard, we can recognise an evolving reasonable person. We can broaden our definition of the reasonable person to include the experiences of women and other groups that have not historically exercised power and have faced systemic bias.”
How can we use the reasonable woman standard in sexual harassment complaints? Here are some tips.
1. Use the reasonable woman standard within reason
When we apply the reasonable woman standard in sexual harassment complaints, we should ensure that we do so in tandem with other parameters. Every instance and incident of sexual harassment is contextual. It should be evaluated keeping in mind the nature of both parties’ relationship, the unique circumstances surrounding the instance/incident and other principles that guide sexual harassment investigations.
2. Understand that the “average woman” is hypothetical
Sometimes, people assume that this standard can be applied in such a way that if other women don’t find the conduct objectionable, but one woman does, she is being “unreasonable”.
For instance, say five colleagues, three women and two men, are having lunch together. One of the male colleagues says, “If I were a woman, client meetings would be so much easier! You can just dress a little sexy and the client will be putty in your hands. That’s why the three of you have better sales ratings than us.” While two of the women laugh along and don’t see any offence in the comment, the third woman finds it highly offensive. Does this mean the conduct passes the reasonable woman standard? No. It is important to keep in mind that the reasonable woman standard is one that is cognisant of bias, and such statements perpetuate stereotypes of women.
Further, the term ‘average woman’ is more adequately defined as a fictional woman “who is aware of the barriers to workplace inequality”. Even women may be subject to biased behaviour themselves, and it is a misconception that ‘average woman’ means taking a survey of the opinions of women and using the median to determine objectionable conduct at the workplace.
3. Privilege the perspective of marginalised identities while evaluating offense
In my opinion, one of the biggest takeaways from the reasonable woman standard, is the necessity to be cognisant of social inequalities when evaluating objectionable conduct.
The default, especially in workplaces, has been historically male and heteronormative. Often, I hear people say, “Back in our day, no one made a such a big deal about XYZ”. Objectionable conduct is not suddenly offensive. It has always been offensive, but people of marginalised identities are able to raise their voices in a more amplified manner today.
While we must consider and hear all sides, we should also be conscious not to allow our biases to determine what is or what is not objectionable. Particularly in evaluating sexual harassment complaints, we should ensure that we don’t evaluate matters from the perspective of “if I were her, I would not have reacted like that”. Instead, we should value and respect where the person making a complaint is coming from and be conscious of the relevant societal context.
Abhaya Tatavarti is the lead consultant for the Prevention of Sexual Harassment at Parity Consulting in Bengaluru.