Document Type
Article
Publication Date
2-2026
Abstract
Courts assessing summary judgment motions in Title VII harassment claims commonly grant the motion on the basis that the alleged harassment is insufficiently “severe or pervasive” to meet the legal standard. This mixed-methods study empirically tests whether there is a gap between how judges and potential jurors assess the same set of facts on the severe or pervasive element of a Title VII harassment claim. We presented study participants with facts from 80 federal harassment cases. In each case, the defendant employer moved to dismiss the case, arguing that no reasonable jury would find the alleged harassment sufficiently severe or pervasive to meet the legal threshold. We provided the participants with relevant jury instructions and asked them to: (1) rate the severity or pervasiveness of the alleged harassment; (2) assess whether the plaintiff met the legal standard; and (3) discuss their reasoning.
Our results suggest a substantial divergence between judicial assessments and simulated jury assessments of the sampled cases. Judges granted summary judgment in favor of the employer or dismissed 65% of the harassment cases in the sample. By contrast, our simulated juries would have dismissed less than 20% of the very same cases. Both our quantitative and qualitative findings shed light on the source of this divergence. The difference in assessment is not due to demographic differences between judges and the mock jurors, nor is it caused by shifting judicial assessments over time. Our qualitative results indicate laypeople tend to view the fact patterns in a much more holistic manner than judges, which is consistent with guidance established by the Supreme Court. In addition, our quantitative analysis suggests courts may be selectively discounting the severity or pervasiveness of cases alleging intersectional harassment based on more than one protected characteristic. Going forward, we recommend that courts exercise far greater caution in evaluating harassment claims on summary judgment. Courts should also allow intersectional claims to be pled as a single cause of action.
Publication Citation
Connecticut Law Review, Vol. 58, Issue 2, 233-294.
Scholarly Commons Citation
Tippett, Elizabeth C. and Bowman Williams, Jamillah, "Misjudging a Reasonable Jury: Evidence That Courts Dismiss Meritorious Harassment Claims" (2026). Georgetown Law Faculty Publications and Other Works. 2696.
https://scholarship.law.georgetown.edu/facpub/2696