50 years of psychological science demonstrate the influence of authority and social norms
By Glenn McGovern, Attorney, Metairie, La.
Celeste Kidd (ckidd@bcs.rochester.edu), Brain & Cognitive Sciences, University of Rochester, Rochester, NY
Steven T. Piantadosi (piantado@mit.edu), Brain & Cognitive Sciences, Massachusetts Institute of Technology, Cambridge, MA
In her lawsuit, Susie Q alleged that her supervisor had offered her financial bonuses and vacation days in exchange for sexual favors during the three years she was employed by the company. Though the behavior of her boss clearly constitutes quid pro quo sexual harassment (sexual favors were solicited in exchange for rewards and improved working conditions), such cases can be particularly difficult to argue to a jury. This is because jury members most often struggle against the feeling that Susie Q herself is at least partially to blame. Such cases in which threats are carried out in and “economic quid pro quo” is where an employee’s subjection to sexual conduct I is linked to the granting or denial of job benefits such as retaining a job, receiving a favorable performance review or a promotion. See Meritor Sav. Bank v Vinson, 477 US 57,65, 106 S. Ct. 2404-2405. The test is whether when a supervisor requested sex, a reasonable woman would believe submission was necessary to save her job. See Holly D. v. California Institute of Technology, 339 F3d 1173 at 1175 (9th Cir. 2003). Acquiescence in sexual advances is not fatal as long as the advance itself was not welcome. See Meritor Sav. Bank, FSB, Vinson, 477 US at 68, 106 S. Ct. at 246
After all, didn’t she choose to submit to her bosses requests? When asked to do so, hadn’t she voluntarily worn low-cut tops, tolerated obscene comments from Mr. B, and even on one occasion initiated a sexual encounter at the club? Why didn’t she refuse to perform these acts earlier? Why didn’t she say “no” the first time? Most importantly, by keeping herself in the bad situation for three years, isn’t she responsible for her own discomfort?
Though naive intuitions may push us to assign blame to the victims of sexual harassment, especially quid pro quo, there’s a large scientific literature that demonstrates how implicit and explicit social pressures exert a powerful influence on human behavior. This research indicates that there is not a reasonable expectation for victims to say “no,” especially when doing so would contradict an authority figure or group of peers. In the rest of this article, we will discuss scientific research on the influences of authority and social pressure. We present this very brief overview of research in the hopes that readers will be able to use these findings to educate juries as to why victims of sexual harassment sometimes tolerate or submit to inappropriate requests made by their peers and superiors in quid pro quo situations. Research in this area is extremely interesting and will help one prepare to argue such as case of coerced sexual harassment and overcome consent as a defense.
THE POWER OF AUTHORITY
Half a century’s worth of psychological research results demonstrate that people reliably submit to the requests of their superiors, regardless of whether or not they personally want to perform the requested acts. In fact, an overwhelming majority of people will even perform acts that they find morally reprehensible when simply asked to do so by someone they perceive to be authoritative.
This research goes back to the aftermath of World War II, the psychologist Stanley Milgram became interested in the question of how Germany's soldiers could have carried out their part in the Holocaust. What would bring millions of soldiers to act in a way, which would seem to be so clearly immoral? More to the point, what would it take for typical Americans to act like that? In what is now a classic experiment, Yale University psychologist Stanley Milgram found the answer: not much.
The Milgram conducted a series of social psychology experiments designed to measure human obedience to authority figures (Milgram, 1963, 1974). Participants in these studies were instructed to teach another person a list of words. The participants were also instructed to punish mistakes by administering electrical shocks to help the other person learn. For each wrong answer, the strength of the shock would increase by 15 volts. Unbeknownst to the study participants, the “learners” were actors pretending to be other study participants, and the electrical shocks were not real. However, it was all made to seem real to the real study participants: as voltage increased, the participants heard increasingly pained sounds from the person they were “shocking,” followed by banging on the wall, and eventually just silence.
Participants who expressed discomfort or a desire to stop were simply told by the researcher that they had “no other choice" and "must" continue. These commands were delivered in a neutral tone, and carried no explicit threats as to what would happen if the command was ignored. The question is: what percent of subjects would continue to deliver shocks. How high would subjects go with merely verbal instruction to do so?
In a survey of Yale students, Milgram found that people believed that only 3% of the study participants would continue up to the maximum voltage of 450 volts. Intuitively, that sounds about right.
But the experimental results violated all intuitions: 65% of study participants actually delivered the maximum voltage as punishment to the learner with mere verbal instruction to do so. The implication of this finding is shocking, but clear: Almost two thirds of us would obey authority to the point of apparently inflicting severe pain to another person. Bear in mind that this scenario does not involve any sort of threatening, coercion, or even officially sanctioned authority--just the request of someone who appears to be competent (in this case, the researcher) telling you to inflict pain on another person.
This experiment has been replicated a number of times, and has reliably resulted in about the same rate of obedience. One especially colorful replication (Sheridan & King 1972) found that 20 of 26 participants would actually shock a puppy with the maximum voltage, removing the doubt that subjects only acted this way because they believed the experiment was fake (Milgram, 1972). In this version of the experiment, the shocks again occurred with increasing intensity, and generated actual responses ranging from foot flexion and occasional barks at the lowest level, to continuous barking and howling at the highest. (It should be noted that though these shocks were painful, they were at least amperage-limited to prevent them from causing any serious harm to the puppies.) It may also be of interest to note that in this version, there was a significant effect of the gender of the participant: 100% of the female subjects were fully obedient, while only 54% of the males complied fully. This gender effect--with women being much more likely to comply with the requests of an authority figure--has also been replicated in countless other variations of the original Milgram experiment.
The implications of these results on arguing quid pro quo cases to a jury should be obvious: jury members are likely to believe that they themselves would not engage in acts they find morally reprehensible simply because they were asked to do so, but scientific research suggests otherwise. Calling this research to the attention of the jury could help them to understand why the victims of sexual harassment submit to the requests of their superiors, often for extended periods of time, without protest. It is likely that most of us would do the same.
THE POWER OF SOCIAL PRESSURE
Of course the role of authority is not the only factor contributing to why victims of sexual harassment play in to the requests of their harassers. In fact, those who sexually harass others are not even always superiors. Another body of research on the power of social pressure may be useful in strengthening the plaintiff’s argument in these sorts of cases. In these experiments, subjects simply conform to the behavior of others without any explicit instruction to do so. Indeed, they conform even to the point of giving obviously wrong answers to easy questions.
In conformity experiments carried out by Solomon Asch, subjects were asked a simple and basic visual of judging which of three lines was longer (Asch 1951). The experiment was set up so that one line was clearly longer than the others, but subjects were required to answer after hearing a number of other people answer the question incorrectly (entertaining videos can be found on YouTube). If at least three people answered the question incorrectly before the subject was asked, subjects would often answer incorrectly, conforming to others' answers. People will apparently go against their better judgment and give a clearly wrong answer just to avoid standing out. Interestingly, conformity rates decrease substantially if just a single individual dissents from the otherwise unanimous crowd.
As with the Milgram experiments, these findings may explain why individuals may not stand up to sexual harassment, especially when they are surrounded by others who find it acceptable. The behavior of others exerts a tremendous implicit social pressure on us to conform. This conformity behavior may be particularly relevant in explaining how sexualized work environments are created and sustained (i.e., in cases of hostile environment sexual harassment). In environments where obscenities, sexual joking, sexually explicit images, pornography, and sexually degrading language become common, retaliation against anyone who complains about their discomfort is common (Fitzgerald, Swan, & Fischer, 1995). In a well-known example, when Lois Jenson filed her lawsuit against Eveleth Taconite Co., the women placed a hangman's noose above her workplace, and forced her into social isolation both at and outside of work. Many of Jenson’s female colleagues later joined her suit (Bingham & Gansler, 2002).
It is important to make sure that the jury members to understand the strength of these social pressures to avoid erroneously assigning blame to the victim for tolerating or submitting to obscene requests in such environments. Reviewing the Asch experiments is an effective way of illustrating for the jury the power of social pressures as a means of explaining why a victim of sexual harassment may not have spoken out immediately.
APPLYING SOCIAL SCIENCE FINDINGS TO SEXUAL HARASSMENT CASES
People are easily brought to do extraordinarily immoral or stupid things. Factors like authority and social pressure have an extremely powerful influence on our behavior. A troubling fact for a jury-driven judicial system is that our intuitions about why people act the way they do, or how most people would act in a given situation are far off from the truth. To find how people actually would behave, we must turn to laboratory experiments that provide controlled experiments and quantitative findings of how people actually act.
Calling the jury’s attention to these classic scientific findings early in your argument can prevent them from unfairly assigning blame to the plaintiff on the grounds that a reasonable person would have removed them from the situation earlier without submitting to any immoral requests. Importantly, it can help jury members realize that were they in the plaintiff’s position, they most likely would have done many of the same things. This tactic will hopefully prove productive in allowing jury members to focus on holding the party who initiated the quid pro quo sexual harassment or created the hostile work environment accountable for their actions.
REFERENCES
Asch, S. E. (1951). Effects of group pressure upon the modification and distortion of judgment. In H. Guetzkow (ed.) Groups, leadership and men. Pittsburgh, PA: Carnegie Press.
Bingham, C., & Gansler, L. L. (2002). Class Action: The Landmark Case that Changed Sexual Harassment Law. New York: Anchor Books.
Fitzgerald, L.F., Swan, S., & Fischer, K. (1995). “Why Didn't She Just Report Him? The Psychological and Legal Implications of Women's Responses to Sexual Harassment”. Journal of Social Issues, 51(1): 117-138.
Milgram, S. (1974), Obedience to Authority; An Experimental View. Harper Collins.
Milgram, S. (1963). "Behavioral Study of Obedience". Journal of Abnormal and Social Psychology, 67: 371–378.
Sheridan, C.L. & King, K.G. (1972) Obedience to authority with an authentic victim. Proceedings of the 80th Annual Convention of the American Psychological Association, 7: 165-6.
