Rational women: A test for sex-based harassment

The issue of what constitutes acceptable sexual conduct in the workplace has sparked contentious social debate. In addition, courts have disagreed about how to define actionable sex-based harassment under Title VII of the Civil Rights Act. Under the current doctrine, courts render case-by-case judgments about whether particular acts of harassment are harmful or offensive enough to constitute discrimination. This inquiry is laden with subjective value judgments, and it transforms the individual harassment case into a microcosm for the larger social debate about what behavior is acceptable in the workplace. This Article presents an alternative test for evaluating sexual harassment claims under Title VII that avoids normative speculation. The Article starts from the premise that Title VII's objective is to ensure that women's employment decisions are not burdened by factors that do not enter into men's employment decisions. The author demonstrates that sex-based harassment plays a significant role in women's economic status, directly effecting women's job retention rates and contributing to horizontal and vertical occupational segregation. Employing economic analysis, the author suggests that behavior should be considered discriminatory whenever it would lead a hypothetical rational woman to alter her employment decisions if she could do so at little or no cost.