Alex Tabarrok suggests that sexual harassment is analogous to employee theft. If this were so, however, victims of harassment would have an ridiculously easy remedy for their woes: Tell the boss.
When an employee tattles on a co-worker for stealing, the boss is normally happy for the information, and eager to retaliate against the thief. If sexual harassment were really comparable to employee theft, employers would be equally receptive to informants, and equally punitive against offenders – even in the absence of sexual harassment laws.
Does this sound like a realistic prediction to you? It doesn’t to me. Bosses might welcome and act on complaints about egregious harassers. But if they had zero liability, employers would probably treat sexual harassment issues like any other personality conflict. While they’d intervene if things got out of hand, they’d prefer employees to resolve harassment issues on their own. And if push came to shove, employers would just fire the worker they value less, not the worker who’s “in the right.”
Why does the analogy between employee theft and sexual harassment break down? The most obvious difference is the ambiguity. “Theft” isn’t perfectly clear, but it’s far clearer than “harassment.” A worker who tells the boss, “John is stealing from the company” might be lying, but he’s probably not honestly mistaken or overly sensitive. In contrast, a worker who tells the boss, “John is harassing me,” might be any of these things.
If you read the legal definition of “sexual harassment,” another key difference from employee theft jumps out at you. A key component is “unwelcome sexual advances.” This immediately raises an awkward question: How can anyone know if an advance is “unwelcome” until he actually makes the advance? You can’t. The only safe strategy, then, is to make no advances whatsoever.
In the absence of sexual harassment laws, employers would naturally prefer a more forgiving approach. There’s a trade-off between preventing unwanted advances and preventing wanted advances – and there’s no reason to choose a corner solution. Treating harassment complaints as seriously as employee theft complaints is simply bad for business. You might make a few puritan workers happy, but what about everybody else?