Golden Gate University Law Review


Tailoring the reasonable-woman standard to include select disabilities is problematic because employer liability would improperly depend upon the effect that the victim's disability had on the victim's perception, instead of on the agency relationship between the supervisor and the employer. Furthermore, these subjective standards would prevent employers from successfully invoking the reasonable care defense. Using these tailored standards would also result in discriminatory treatment under the law for women who did not qualify for one of these customized standards. Finally, customized standards would sterilize American workplaces. In support of this Comment's assertions against factoring the emotional and financial difficulties of the actual plaintiff into the reasonable woman standard, Part I provides a background of federal sexual harassment law, ending with a review of the Ninth Circuit's recent decision in Holly D. v. California Institute of Technology. Part II (a) discusses how customized standards would enlarge the scope of employer liability, conflicting with the principles of agency law that justify holding employers strictly vicariously liable for supervisor harassment and decreasing employers' abilities to use the reasonable care defense. Part II (b) suggests that customized reasonable-woman standards create unequal treatment for women under the law, a contravention of anti-discrimination laws. Part II (c) proposes that customized standards would strike a death blow to workplace romances because supervisors and employers would fear that innocent relationships might lead to sanctions. Part III concludes that customized reasonable-woman standards cause a number of problems that can be best avoided by leaving these standards buried in a Holly D. v. California Institute of Technology footnote.