Avoiding Harm Otherwise: Reframing Women Employees\u27 Responses to the Harms of Sexual Harassment

This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law\u27s interest in employee\u27s harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms. This article reframes the legal discussion of an employee\u27s actions in response to sexual harassment from one that almost exclusively focuses on whether the employee failed to report the sexual harassment. To assist in the reconceptualization, this article explores women employees\u27 responses to sexual harassment: the ways in which they are harmed by sexual harassment, beyond the act of sexual harassment itself, and the ways in which they avoid that harm, beyond simply reporting the sexual harassment. There are at least two benefits from this reframing. First, a more inclusive depiction of women employees\u27 injuries from and responses to sexual harassment would far better inform sexual harassment liability determinations. As a result, the determinations can fulfill the legislative intent of Title VII of the Civil Rights Act of 1964 to encourage and reinforce employees\u27 efforts to avoid harm. Second, through this process, there is an opportunity to reveal the existing reality that highlights women\u27s partial agency but often is obscured with the dominant picture of a sexual harassment victim as suffering in silence