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Joni Hersch & Beverly I. Moran, He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Ky. L.J. 753 (2013), available at SSRN.

In He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, Joni Hersch & Beverly Moran explore whether coverage of sexual harassment in the New York Times and Wall Street Journal is consistent with sexual harassment as it is reported in three other sources: a 1994 United States Merit Systems Protection Board (USMSPB) survey, charges filed with the Equal Employment Opportunity Commission (EEOC) from 2006-2010, and complaints filed in the Eastern District of Pennsylvania (EDPa) from 2010-2011. As the authors note, the article stemmed from curiosity regarding what national media outlets are reporting about sexual harassment and if that matches the reality of sexual harassment: “This article was inspired by a desire to learn if our national portrait of sexual harassment comports with what we know about harassment through social science.” (P. 775.) I like the article because it explores a practical issue that can help illuminate how one particularly important area of law is perceived and lived. How sexual harassment is perceived can help shape how sexual harassment law is enforced and how sexual harassment is lived in the workplace. Consequently, the article may be of interest to almost anyone who works with or cares about employment discrimination law.

The article can be summarized fairly quickly. The authors identify the key issue: whether major media outlets cover sexual harassment reasonably, fairly and accurately. After a brief discussion of the literature regarding sexual harassment in the workplace and the doctrine and history of sexual harassment, the authors compare sexual harassment coverage in the New York Times and Wall Street Journal with three data sets noted above: the USMSPB survey on sexual harassment, EEOC charge data, and sexual harassment complaints filed in the EDPa. The authors quickly analyze each data set noting the demographics of the sexual harassment claimants and what behavior tends to trigger harassment charges. The review of the media coverage suggests that sexual harassment is covered in an intensely local and episodic manner, with little recognition that sexual harassment is a national phenomenon that could be connected to “a larger, social, economic or political trend.” (P. 778.) In comparing the media coverage and the data sets, the authors found that while the reporting of the New York Times and Wall Street Journal generally does not mislead regarding the demographics of sexual harassment claimants, particular stories may downplay the seriousness of the factual allegations made in complaints. The article suggests that differences between the media portrayal of sexual harassment and what can be found in the data may result from the media’s focus on litigation. The authors note that a focus on pre-litigation harassment claims may provide a fuller picture of sexual harassment. The authors end the article observing that the focus on litigation leads to reporting that tends to miss “a sense of what happens before litigation and what sexual harassment means to victims in terms of their economic, professional, and emotional lives.” (P. 781.)

The article is not a comprehensive study of how major media portrays sexual harassment and whether that portrayal is consistent with how workplace sexual harassment is lived. It takes a narrow slice of the media and a narrow slice of sexual harassment claims and complaints and compares them. To be clear, this is not a criticism. Scholarship need not always be earth-shattering or make an all-encompassing point. Good and interesting scholarship can be fairly narrow and limited. A narrow exploration of a narrow slice of evidence that yields a few insights based on the limited exploration can be enough to move the enterprise forward. This article does that. As important, this article likely will encourage additional areas of study regarding the broad question of how the public is informed about sexual harassment, its prevalence and its resolution. Several more articles like this one could help us better understand whether the public’s vision of sexual harassment matches sexual harassment’s reality.

Those of us who have taught and written about sexual harassment realize that many laypeople and some lawyers have a tenuous grasp of what sexual harassment is and how prevalent it is. The information the public receives about sexual harassment is of critical importance because it can color the public’s vision of what the law is and can affect what the law becomes. Judges and juries will nearly always attempt to follow the law. However, judges and juries may analyze a sexual harassment case based on what they believe they know about sexual harassment. Factfinders must find facts based on the evidence presented, but how they do so may depend on their background impressions of sexual harassment. To the extent that more people will get their ideas about the law from the media than from studies of workplace sexual harassment, seeing what information the public is provided and how it appears to track what we know about sexual harassment is a fruitful task. The article is worthwhile.

The article is worth a read for those who have an interest in sexual harassment law. It is worth a read for those who are curious about how sexual harassment is portrayed in the New York Times and the Wall Street Journal. It is worth a read for those who might consider comparing the coverage that sexual harassment gets in other media outlets. Lastly, it is worth a read for those who have ever thought about how non-lawyers develop their ideas on sexual harassment. The article qualifies as a Thing I Like Lots.

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Cite as: Henry L. Chambers, Jr., Who, What, Why, When and Where: How Well Does the National Media Report on Sexual Harassment?, JOTWELL (February 12, 2014) (reviewing Joni Hersch & Beverly I. Moran, He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Ky. L.J. 753 (2013), available at SSRN),