Harassment: Predicting Outcomes in Federal & State Courts

With Elizabeth Tippett, University of Oregon School of Law

This empirical analysis of workplace harassment cases filed in state and federal court, examines:

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(1) what predicts outcomes of harassment cases; and (2) whether courts have changed their standards for what constitutes “severe or pervasive” harassment over time. We have collected a random sample of about 200 cases that we have coded for protected category, race/gender of parties, outcome (did plaintiff survive summary judgement), were discrimination and/or retaliation claims also asserted, employer characteristics (public, private, unionized), pro se plaintiff, and judge characteristics. We will compare whether the average independent rating of severe and pervasiveness changes over time, whether these ratings are consistent with judicial determinations of severity/pervasiveness, and how these ratings correlate with surviving summary judgment.

For example, do cases that independent raters identify as high on severe/pervasiveness win on summary judgment more in earlier time periods compared to recent time periods? With the data we have collected on cases, we can also examine how the standard shifts depending on race/gender of the target/harasser and how this affects summary judgement outcomes. We will also examine differences by jurisdiction, race/gender of the judges, alleged target/perpetrator characteristics, etc.