The Bad Apple Theory in Sexual Harassment Law

Abstract

Nine years ago, I was an Assistant Professor of Business Law in the finance department at a public university's business school. At the start of my second year, a colleague, who had just earned tenure, began to engage in sexually aggressive behavior toward me. Like most victims of sexual harassment, I did nothing at first, except speak to a female friend on the faculty. I did not report the behavior to the chair of my department nor did I register a grievance with the university's affirmative action office. But, as the harassment escalated, I realized I had no choice but to report it.

My personal experience at the university made me aware of the deficiencies of what I call the individual model of workplace sexual harassment. That model depicts harassment as an individual, often sexualized, dispute between the harasser and his victim. As a result, it renders largely invisible the organizational employer's role in creating or fostering a hostile work environment. The organizational predictors of harassment - a sexsegregated work force, male-defined jobs, and an organizational tolerance for harassing behavior-play little, if any role, in the federal courts' adjudication of sexual harassment complaints. As a result, the organizational employer is presumed to be objective and competent to screen and resolve complaints of sexual harassment within the workplace. Moreover, because the employer is presumed to be a neutral, objective mediator of these workplace disputes, the federal courts view with skepticism, and even hostility, victims' claims that subsequent, negative work evaluations constitute retaliation. Finally, because the individual model locates the source of the harm with the individual harasser, the assumption is that, without notice, the organizational employer is unaware of the harassing conduct. Thus, the burden falls on the victim to complain. If she fails to do so, it is her fault for not alerting her employer so that it could take steps to stop the harassing behavior.

Keywords: sexual harassment, sex discrimination theory