Sexual Harassment As Theft From The Corporate Employer

This is a fascinating concept that superficially seems attractive, at least as an internal philosophy of the business regarding how to treat these cases. 

But this approach as a basis for rules of law does seem to undermine the theoretical basis for relief for victims of sexual harassment from the offender's employer, on the theory that the harasser is an agent of the company for which it is responsible. Normally, a principal does not have liability for an agent's conduct that is ultra vires. 

A model where the employer and offender are both responsible, and the offender then has a duty to indemnify the employer for the damages it suffered, would seem to better address that issue, even though it aligns the employer and offender against the victim in the first instance, even if the employer's defense of the offender's conduct is temporary. In the context of the article, it isn't clear that the third objection to this theory has really been overcome and accurately describes the likely corporate response.

This article suggests how sexual harassment should be treated by companies as a civil misappropriation, embezzlement, conversion, or theft - as well as a civil rights violation. Additionally, some payments associated with sex-based harassment should be considered corporate waste. 

The misappropriation approach considers not only how sex-based harassment constitutes a civil misappropriation, embezzlement, conversion, or theft, but it also responds to three anticipated objections to sexual harassment as a civil misappropriation: (1) sexual harassment is a minor corporate expense; (2) identification of sexual harassment as civil misappropriation of corporate human assets commodifies targets; and (3) this new concept will change neither corporate responses nor corporate cultures. First in response, sexual harassment is not a minor expense but one that costs companies billions of dollars annually. It is, therefore, in a company’s financial interest to treat the problem as a theft of valuable assets. Second, only corporate failure to recognize the market value of female professional talent dehumanizes people. Almost all human beings engage in work and, men in particular, are valued for their work. Thus, the misappropriation solution puts targets on the same plane as privileged men, valued for their market productivity (as opposed to sexual or reproductive utility). Third, the identification of sexual harassment as a theft, conversion, embezzlement, or misappropriation, as well as a civil rights violation, encourages companies to modify and improve their remedial responses, corporate culture, profitability, and transparency. 

By making corporations and harassment targets potential allies, instead of adversaries, the reconception of sex-based harassment as a misappropriation of corporate human assets incentivizes new collaborations for social and economic justice.

Jennifer Ann Drobac, "The Misappropriation, Embezzlement, Theft, and Waste of Corporate Human and Financial Assets: Sexual Harassment Reconceived" —ABA J. LAB. & EMP. L.— (anticipated 2022).