SEXUAL HARASSMENT: CASES, CASE STUDIES, & COMMENTARY

SEXUAL HARASSMENT: CASES, CASE STUDIES, & COMMENTARY, by Paul I. Weizer. New York: Peter Lang Publishing, Inc., 2002. 339 pp. Paper, $29.95. ISBN 0-8024-5261-0.

Reviewed by Mia Cahill, Ph.D., Esq., in private law practice in Princeton, New Jersey and Department of Labor Studies, Rutgers University.

In his work, SEXUAL HARASSMENT, CASES, CASE STUDIES & COMMENTARY, Paul Weizer fills an important gap in undergraduate textbooks. Despite the last decade’s emphasis on sexual harassment in law and as a social phenomenon, there are few educational texts devoted to its analysis. This book is obviously appropriate to a course on sexual harassment, employment law, or labor studies, but it would work exceptionally well in a course focused on the First Amendment. Undergraduate teaching experience is evident in Weizer’s writing and in the structure of the book. The material is both complex and easily digestible; it addresses important policy debates without reducing the issues to false dichotomies.

As described by the author, “This book is designed to bring together material on an issue that is currently troubling most workplaces and schools in the United States: the problem of how to deal with a distressing increase in sexual harassment claims in all areas of American life” (p.1). To the author’s credit, Weizer aptly reaches his goal: the reader is provided with the sense that sexual harassment claims and awards are part of an alarming trend that has no end in sight, and legal responses to sexual harassment quite possibly dampen First Amendment rights. A stable thread throughout the book is that the policy issues raised are not simply or easily addressed.

The textbook is divided into three parts: cases, case studies, and commentary. Interestingly, Part 1 begins with CORNE v. BAUSCH AND LOMB, INC, the 1975 U.S. District Court for the District of Arizona case that described the harasser as satisfying a “personal urge” and thus, finding no “company-directed” conduct, ruled against the plaintiff. Weizer goes on to catalog most major sexual harassment cases at the federal level, making important segue from one case to the next through carefully crafted discussion questions. The discussion questions in Part 1 are strengths of the book, and lend themselves well to class discussions on the legal process.

The structure of Part 3, “Commentary,” invites faculty to construct classroom debates and/or to assign opinion papers. Another of the book’s strengths is eliciting the free speech issues inherent in the application of sexual harassment law. The first set of essays, by Eugene Volokh and David Benjamin Oppenheimer, take opposing positions on whether sexual harassment law restricts constitutionally protected speech. Students pondering this issue will likely draw on the Part 2 case study of campus speech codes. The second commentary addresses the reasonable woman standard through the essays of Caroline A. Forell and Donna M. Matthews, and David Schultz.

The textbook also provides an appendix that is extremely useful in the classroom, providing the relevant aspects of Title VII of the Civil Rights Act of 1964, the Equal Employment Opportunity Commission Notice 915.002, (which provides the EEOC interpretation of sexual harassment law after the 1998 Supreme Court decisions), and the 1990 EEOC Guidelines. The text of the Michigan and Wisconsin Speech Codes, which is the subject of one of the case studies, would also have been a welcome addition to the Appendix.

Part 2 provides three case studies, “The Clarence Thomas Confirmation Hearings: The Awakening of America to the Issue of Sexual Harassment,” “Taking the Science Out of Decision Making: Sexual Harassment Policy and Human Resource Management,” and “Sexual Harassment and Free Speech: The Lessons of the Campus Speech Code Controversies.” The third case study on campus speech codes raises the issues of sexual harassment and free speech, and is the strongest of the three case studies. This case study generally contributes to the strength of the book in bringing forth free speech policy issues.

While the book is strong overall, the case studies (Part 2) miss an opportunity to ground the policy issues that are raised throughout the book in social context. In particular, the second of Weizer’s case studies rightly addresses managerial decision-making regarding sexual harassment. He concludes that because of the law, as applied by the courts, managers are left with little option other than reacting in the harshest possible manner (pp.163-4). Weizer does not provide data regarding managerial decisionmaking, but one might imagine that well-advised corporations are taking plenty of “preventive and corrective” action. Weizer’s antidotal evidence for the policy positions he raises is compelling, but the book would be strengthened if supported by social science research, and expanded beyond his stated problem of how to address the increase in sexual harassment claims.

Another issue elicited by the case studies is that of internal dispute resolution, and the role of employers in implementing sexual harassment law. Inexplicably, the author discounts the importance of the affirmative defense for employers set forth in the 1998 Supreme Court cases of BURLINGTON INDUSTRIES v. KIMBERLY B. ELLERTH, and FARAGHER v. CITY OF BOCA RATON. (Indeed, FARAGHER is left out of the otherwise comprehensive Part 1).[1] Thus, most potential plaintiffs must notify their employers of the sexual harassment and try to resolve the dispute within the organization’s specified procedures, or they risk an affirmative defense in court. The ELLERTH and FARAGHER package completely changed sexual harassment litigation, providing employers with the strategic opportunity and power to force potential plaintiffs to address sexual harassment issues in-house, and provided a much-desired pathway to liability avoidance. Given the reduction in legal uncertainty in the field of sexual harassment and the increase in bureaucratic regulation over sexual harassment disputes, the book does not move beyond the sexual harassment issues of the late 1990s, perhaps leaving an opening for classroom discussion.

The issues that the text most aptly raises, those of free speech, are relevant and important. Despite the desire for more, the textbook does an excellent job bringing to the forefront many of the policy issues involved in addressing the issues of sexual harassment claims.

[1] The affirmative defense has two parts: First, employers must show that they exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Second, the employer must show that the victim unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

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Copyright 2003 by LPBR.